Saturday, April 21, 2012

Culture, Conflict and Ecology: The Commons in History

By Derek Wall
April 21, 2012

This is the first section of my new book, if any of you would like to see the first draft of the whole thing email me. I have also been lucky enough to spend some time with Elinor Ostrom who won a Nobel Prize for economics for her work on the commons. 

While she is not an ecosocialist and in fact comes from a Hayekian background, she is passionate about commons and support for indigenous and a very open person willing to listen to others (the interview with her will be published in Green World in the autumn).

The book is from an environmental history perspective. 

Chapter One: Commons Ecology. 

What we need to question is bricks, concrete, glass, our table manners, our utensils, our tools, the way we spend our time, our rhythms. To question that which seems to have ceased forever to astonish us. We live, true, we breathe, true; we walk, we go downstairs, we sit at a table in order to eat, we lie down on a bed on order to sleep. How? Where? When? Why? Describe your street. Describe another. Compare.Georges Perec (L'Infra-ordinaire) from Bellos 2010: 521-522. London and its environs would have no parks today if commoners had not asserted their rights, and as the nineteenth century drew on rights of recreation were more important than rights of pasture, and were defended vigilantly by the Commons Preservation Society. We owe to these premature ‘Greens’ such urban lungs as we have. More than that, if it had not been for the stubborn defence by Newbury commoners of their rights to the Greenham Common, where on earth could NATO have parked its Nukes (Thompson, 1993: 126).

The siege of Namur in 1695 is, perhaps, best known from Laurence Sterne’s novel Tristram Shandy but it is as good a place as any to start our discussion of the commons in history. In Sterne’s novel Tristram’s uncle Toby becomes obsessed with the siege where he received a mysterious groin injury. He builds a large scale replica of the battle which he shows to his increasingly frustrated fiancée Widow Wadham. The novel is important as a stunning piece of apparently post-modern literature from the 18th century, loved by Karl Marx; it has inspired much critical comment. The siege which took place between the British and French forces led to an episode of ‘commoning’ in Kirk Yetholm, a border town in the North of England famed for its association with gypsy travelers.

During the siege a gypsy by the name of Young saved the life of a Captain Bennet:‘Accordingly, in gratitude for this deed, the Captain built cottages at Yetholm and leased them to the gypsies. At this time, the feu consisted of a cottage, a garden and about a quarter of an acre in the loaning. In addition, there was the right to cut turf and peat, and grazing for a cow and a horse, all on Yetholm Common. This, indeed, was gratitude.’ (http://www.scottishgypsies.co.uk/yetholm.html) The story is traditional and another version suggests the gypsies were granted hospitality after rescuing a horse, stolen by Jacobites, owned by Sir William Bennet in 1745. However, while the stories are disputed there is no doubt that the travelers settled in the area and were granted common rights. Commoning in all its diversity includes both shared collective ownership of land and other resources as well as the right of different individuals to enjoy the property of others.

Commons is a topic of increasing interest, numerous studies (Ostrom 1990, Thompson 1991) link commons to sustainability and as such it’s an important topic for environmental historians to consider (Rodgers et al 2011). The term has varied connotations, both negative, in terms of notions of ‘tragedy of commons’ and associated mismanagement or more poetically and positively as ‘a mythic landscape, a political metaphor, a utopian community’ (Rodgers et al 2011: 28) Environmental history while it should not take a didactic form may help us make better decisions about how to move towards a more sustainable future. As I write human society appears to be struggling to deal with sustainability, if sustainability is defined as the ability for present society to exist without damaging future generations.

Climate change is already causing temperatures to rise, species are becoming extinct at an increasing rate and all manner of environmental problems seem set to multiple. Can history help us sustain history, so that human beings can prosper without eroding the basic life support systems for our species on this planet? Historical examples should not, of course, be used to advocate a return to some supposed state of nature. Indeed rather than looking for a previous golden green age, the literary theorist Tim Morton has argued that we should be 'nostalgic for the future, helping people figure out that the 'ecological 'paradise' has not occurred yet’
 (2007: 162). 
While the creation of paradise may be a little ambitious; this short book is an introduction to the environmental history of commons and as such suggests that the study of common pool property rights can help us to develop a more sustainable future.

Commons fit in with Morton's notion of nostalgia for the future, sometimes seen as archaic institutions that can be traced to prehistoric times, they can also be seen as contemporary and part of a fast emerging future in reference to the World Wide Web and free software (Benkler 2006). The best known contemporary theorist of commons Professor Elinor Ostrom explicitly refers to a historical notion in advocating a concern with the future. Indeed she noted on accepting an academic prize for her work on commons: 

Our problem is how to craft rules at multiple levels that enable humans to adapt, learn, and change over time so that we are sustaining the very valuable natural resources that we inherited so that we may be able to pass them on. I am deeply indebted to the indigenous peoples in the U.S. who had an image of seven generations being the appropriate time to think about the future.

I think we should all reinstate in our mind the seven-generation rule. When we make really major decisions, we should ask not only what will it do for me today, but what will it do for my children, my children’s children, and their children’s children into the future (Quoted in Wall 2011). Ostrom became the first and to date only women to win a Nobel Prize for economics, strictly speaking the Sveriges Riksbank’s Prize in Economic Sciences which she shared in 2009 with Oliver Williamson. The prize was awarded for her work on the commons.Commons can be seen as a particular category of property rights based on collective rather than state or private ownership, although, as we shall see, there is some overlap between these three categories. Discussion of commons has been closely linked to debates around sustainability both in recent decades and as far back as the days of Aristotle who considered this topic.

 In 1968 Garrett Hardin in his Tragedy of the Commons paper published in the journal Science made the case against commons, arguing that common ownership was a root if not the root cause of environmental degradation. In sharp contrast, Ostrom has argued that under certain circumstances commons can work to create an answer to the puzzle of how to sustain the next seven generations. Indeed the commons activist and writer Jay Walljasper has argued with some polemical passion that,'commons puts useful tools in our hands to stop the assault on Mother Earth and start the healing of our planet. Restoring the commons and defending the rights of Mother Earth are really the same cause, which depends upon discovering a different vision of looking at and living in the world' (http://onthecommons.org/new-way-seeing-world).

 Even more optimistically Massimo de Angelis, a British based political economist, has stated: 'My interest in the commons is grounded in a desire for the conditions necessary to promote social justice, sustainability, and happy lives for all. As simple as that' (2010: 1).

However the commons debate is far from simple. Detailed and complex discussions thick with epistemological and ontological nuances have ranged across several disciplines including anthropology, ecology, legal theory and economics. It is worth noting that the questions thrown up by examination of commons may be better understood by using both historical and cultural approaches. As Agrawal suggests ‘Diachronic’ i.e studies through time may be valuable in this regard: 'Diachronic examination of common property arrangements together with studies of human understandings and subject positions related to the environment have the potential to transform how governance of common property is understood' (Agrawal 2008:61).

This chapter examines different definitions of the commons, outlines Hardin’s rejection of the commons, moves on to Ostrom’s argument that commons can work to maintain sustainability before looking to examples of the environmental implications of commons within a historical context.
 




 - What is the Commons?Property rights determine access to resources and as such strongly influence environmental sustainability. The phrase 'property rights' is, like virtually all terms used by social scientists, subject to some debate. However, a simple working definition 'the concept of a system of rules governing access to and control of material resources' is provided by Waldron (1988: 31).

It should be noted that 'property rights' are social: to do not just with the relationship between people and things, but the relationships between different groups of people in terms of access to resources. They are also environmental as they relate to the relationship between human beings and the rest of nature. It can be argued that changing property rights are of key importance in understanding, not just environmental history, but history in general. Indeed Pedersen (2010) quotes Schurmann who notes in this regard:It is not wrong to say that the nature and intent of a society reveal themselves in the legal and customary concepts of property held by the various members and classes of that society.

These property concepts do not change without an incipient or fundamental change in the nature of the society itself. The history of property relations in a given society is thus, in a way, the history of the society itself (Schurmann 1956: 507).While Waldron’s observation includes ‘material’ resources, property may refer to cultural and other non material categories, which may also influence environmental sustainability. The notion of communal property is often poorly understood. In our society, we tend to assume that property can only be private or state. The idea that property can be owned collectively by a community is often forgotten and the allied notion that individuals may have access to the property of others may also seem unusual. As we shall various forms of communal property are more widespread in contemporary society than is often assumed and were widespread in the past, for example, the Romans had several different form of collective property enshrined in their legal system.

However as Ostrom notes: The term 'common pool resources' is not something that most people have in their everyday language, so let me explain. It’s any kind of resource that’s bigger than a family backyard pool where it's difficult to keep people out — [because keeping them out is] costly. Anyone who enters may subtract something. So a fishery is pretty obvious. Sometimes it's difficult to figure out who can enter and what the boundaries are, but if I take fish out, that fish isn't available to anyone else. That would be a common pool resource (http://www.today.ucla.edu/portal/ut/PRN-10-questions-for-nobel-prize-winning-200205.aspx) Property can also be owned by an individual or institution but may be open to others to use under certain conditions, for example, in England and Wales there are currently 500,000 hectares of common land, owned privately but with access for all. Many of the world's fisheries and forests are ‘commons’ (Rodgers et al 2011:1).

 There has been explosive growth in virtual commons in the form of the World Wide Web, free software and other virtual property. Benkler, who is one of the foremost experts on digital commons, has argued that commons can be contrasted with traditional forms of private property in the following way: ‘Commons’ refers to a particular institutional form of structuring the rights to access, use, and control resources. It is the opposite of "property" in the following sense: With property, law determines one particular person who has authority to decide how the resource will be used. That person who has the authority to decide how the resource will be used. That person may sell it, or give it away, more or less as he or she pleases. [...] the core characteristics of property as the institutional foundation of markets is that the allocation of power to decide how a resource will be used is systematically and drastically asymetric. [...] The salient characteristic of commons, as opposed to property, is that no single person has exclusive control over the use and disposition of any particular resource in the commons.

Instead, resources governed by commons may be used or disposed of by anyone among some (more or less well-defined) number of persons, under rules that may range from "anything goes" to quite crisply articulated formal rules that are effectively enforced' (Benkler 2006: 60-61). In turn, Benkler argues that commons can be divided into different types according to two distinct parameters. 'The first parameter is whether they are open to anyone or only to a defined group. The Oceans, the air, and highway systems are clear examples of open commons.' 
He notes the existence in turn of 'limited-access common resources [..] 'where access is limited only to members of the village or association that collectively 'owns' some defined pasturelands or irrigation systems' (Benkler 2006: 61).
 Benkler's second parameter is whether commons are regulated or unregulated i.e are rules of use and access agreed and enforced? Hardin suggested, in essence, in his ‘Tragedy’ paper that unregulated commons lead to environmental degradation via over-exploitation, Ostrom argues, in turn, that communities can often construct means of regulating commons successfully.

The notion of ‘usufruct’ is essential to the regulation of commons. The term, derived from Roman law, denotes the right to use and profit or otherwise benefit from property that belongs to someone else, as long as it is not damaged. For example, a Roman tenant could enjoy the fruits of land or other forms of property, owned by a landlord, as long as the property was maintained appropriately. Roman legal theorists debated usufruct rules at some length, as is indicated by this account of the rights of the 'usufructuary' to 'enjoy' a property while not owning it:Wood and Timber.—The usufructuary cannot cut fruit trees (D, 7, 1, 13, 4), nor large trees (D. 7, 1, 11); but he may take branches as stakes for his vines, if it can be done without injury to the land. (D. 7, 1,10.) If the trees are dead or overthrown by the wind, Labco says the usufructuary can take them for the repair of his house,—not for firewood, unless he cannot get firewood elsewhere. (D. 7,1, 12,1; Vat. Frag. 70.) Greater freedom was given him in dealing with silva caedua. Silva caedua is that which grows, and is cut down periodically; or, according to Servius, what springs from roots or stumps when cut down; he added that such belonged to the usufructuary. (D. 50, 16, 30, pr.) Certainly this was so, if the revenue of the land was derived from osiers (arundo palus). (D. 7, 1, 59, 2.) Probably the usufructuary was always entitled to such crops, if he kept up the stock. (D. 7, 1, 9, 7; Vat. Frag. 70.)4°. Minerals.— The usufructuary can burn lime or dig for gravel for his house. (D. 7,1, 12, pr.) He can also work in a husband-like manner, quarries, or clay or sand-pits (lapidicinae, cretifodinae, arenae). (D. 7, 1, 9, 2.) Also he can open or use when opened, mines of gold, silver, copper, iron, etc., even to the prejudice of the agriculture, if such is a better use of the property. (D. 7, 1, 13, 5; D. 7, 1, 9, 3.)6°. Bees on the land belong to the usufructuary; and he has the right of fishing, fowling, and hunting. (D. 7, 1, 9, 1; D. 7, 1, 9, 5.) (Hunter 1803: 399) The word usufruct is derived from the Latin phrase usus et fructus which means to use and enjoy. Usufruct extends beyond ancient Roman property law and has an obvious connection with sustainability.

Marx writing in Das Kapital noted:From the standpoint of a higher economic form of society, private ownership of the globe by single individuals will appear quite absurd as private ownership of one man by another. Even a whole society, a nation, or even all simultaneously existing societies taken together, are not the owners of the globe. They are only its possessors, its usufructuries, and like boni patres familias, they must hand it down to succeeding generations in an improved condition (Marx quoted in Kovel 2002: 238). Usufruct rights might vary widely, for example, in medieval Britain, common land was owned by the local Manor keeper but commoners had a range of usage rights including the following:· Pasture – grazing of animals· Pannage – pigs allowed to eat acorns and beech mast· Estovers – taking underwood or small branches for fuel or repairing buildings, taking bracken for animal bedding· Turbary – cutting turf or peat for fuel· Piscary – keeping/taking fish· Common in the soil – taking sand, gravel, stone or minerals for use on a commoner’s land 
(http://www.chilternsaonb.org/caring/commons_what_is.html) Estover is derived from the Latin phrase ‘est opus’ which means ‘it is necessary’. Rodgers et al refer to the 1720 English document The Law of Commons and Commoners to explain this notion, ‘tenants required access to resources needed to enable them to pay rent and perform other services (2011: 36).

 Thus they need to graze cattle on commons to raise revenue to pay their rent and they need access to fallen wood to make their fires. Estover suggests that property rights are more fluid and varied than we understand in a society where much property is private and individualised. Commons and usufruct rights extend beyond Roman and Medieval Europe, legal theorists and historians have become increasingly aware that prior to the period of European colonialism commons were the rule rather than the exception across much of our planet. The jurist Sir Henry Maine in his book Ancient Law, first published in 1861, rejected the ideas that private property based on individual ownership was the original norm, noting, ‘it is more than likely that joint ownership, and not separate ownership, is the really archaic institution, and that the forms of property that will afford us instruction will be those that are associated with the rights of families and of groups of kindred’ (Maine 1876: 259).Where property in land was private, as for example with the English commons described above, usufruct was also surprisingly common.

In New England, William Cronon has outlined in his book Changes in the Land (1983) that while the concept of buying and selling land was alien to the indigenous people, granting usufruct rights or exchanging such rights was possible. Australia too was dominated by indigenous commons, notions of private ownership of land were unknown to the population before the arrival of the British. The existence of common community ownership was also important in India (Chakravarty-Kaul 1996) and despite considerable enclosure remains so in the 21st century. There are numerous examples of commons from continental Europe (de Moor et al 2002). With the erosion of indigenous control in North America, new commons were created by colonialists, although these too have been diminished over the last two hundred years (Freyfogle 2007). Commons remain significant in Mongolia to this day (Fernandez-Gimenez 2006). Chatty examines the Badia, a system of commons management extending over much of Syria (2003). Examples of historical and indeed contemporary commons can be multiplied for virtually every part of the planet.

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