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The Commons as a Model for Ecological Governance

The paradigm of green governance is compelling because it comprises at once a basis rich in legal tradition that extends back centuries, an attractive cultural discourse that can organize and personally energize people, and a widespread participatory social practice that, at this very moment, is producing practical results in projects big and small, local and transnational.

The history of legal recognition of the commons, and thus the commoners' right to the environment, goes back centuries and even millennia. Pharaoh Akhenaten established nature reserves in Egypt in 1370 BC, and forestry conservation laws were in effect in Europe as early as 1700. Hugo Grotius, often called the father of international law, argued in his famous treatise of 1609, Mare Liberum, that the seas must be free for navigation and fishing because the law of nature prohibits ownership of things that appear “to have been created by nature for common things.” Antarctica has been managed as a stable, durable intergovernmental commons since the ratification of the Antarctic Treaty in 1959, enabling scientists to cooperate in major international research projects without the threat of military conflict over territorial claims. And the Outer Space Treaty of 1967, although yet to be seriously tested, declares outer space, the moon and other celestial bodies to be the “province of all mankind” and “not subject to national appropriation.”

Commons have been durable transcultural institutions for ensuring that people can have direct access to, and use of, natural resources, or that government can act as a formal trustee on behalf of the public interest. Commons regimes have acted as a kind of counterpoint to the dominant systems of power because managing a forest, fishery, or marshland as a commons addresses certain basic human wants and needs that endure: the need to meet one's subsistence needs through cooperative uses of shared resources; the expectation of basic fairness and respectful treatment; and the right to a clean, healthy environment to meet (non-market) household and personal needs.

In this sense, the various historical fragments of what may be called “commons law” (not to be confused with the common law) constitute a legal tradition that can advance human and environmental rights. They reflect the elemental moral consensus that all the creations of nature and society that we inherit from previous generations must be protected and held in trust for future generations. Also, they acknowledge the functional necessity of vernacular law.

As Trent Schroyer puts it: The vernacular space is the sensibility and rootedness that emerges from shaping one's own space within the commons associations of local-regional reciprocity. It is the way in which local life has been conducted throughout most of history and even today in a significant proportion of subsistenceand communitarian-oriented communities.… It is also central to those places and spaces where people are struggling to achieve regeneration and social restorations against the forces of economic globalization.

In our time, the state and market are seen as the only credible or significant forces for governance. In large part, this is due to the state and market having developed a powerful alliance for economic growth, technological progress, and top-down governance—one that has systematically destroyed and marginalized the commons so that its viability has been generally overlooked.

But it is due also to the “tragedy of the commons” parable, popularized by ecologist Garrett Hardin and used often to denigrate the commons and to celebrate libertarian, private-property regimes as the best way to manage natural resources. Even though, according to the International Association for the Study of the Commons, an estimated 2 billion people depend on forests, fisheries, water, wildlife, and other natural-resource commons for their everyday needs, the commons paradigm is essentially invisible to mainstream policy making. It has so many diverse manifestations and so many different types of commoners that economists and policy elites have more or less ignored it.

Yet the commons is an eminently practical and versatile mode of governance for ecological resources, among many other forms of shared wealth. By helping us get beyond the false choices of “state versus market” and “public versus private,” the commons points the way toward a diverse array of working governance models that operate at appropriate scales, recognize the realities of ecological limits, and enlist people to become active stewards (and beneficiaries) of commons that matter to them.

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