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Imagining a New Architecture of Law and Policy to Support the Ecological Commons

For a shift to this paradigm to take place, public laws and policies must formally recognize and support the countless commons that now exist and the new ones that must be created. They could legally recognize, for example, the subsistence and indigenous commons that depend on customary practices and rights that presently have scant standing in official law. Governments also could take steps to facilitate such commons as land trusts, cooperatives, and online peer networks that monitor ecological resources (“participatory sensing” communities of water quality; crowdsourcing the spotting of birds, butterflies, and endangered species). They could create new sorts of stakeholder trusts to manage shared assets similar to the Alaska Permanent Fund, or enter into state-commons partnerships that contract with self-organized collectives of commoners, as some Italian municipalities have done.

By such means, government, working with civil society, could facilitate the rise of a commons sector—an eclectic array of commons-based institutions, projects, social practices, and values that advance the policy of collective action. Care must be taken, however, to ensure that state involvement in supporting commons does not stifle their moral or operational integrity, because the quasi-autonomy of commons in making and enforcing their own rules and managing a shared resource is critical to their effectiveness. Extending legal recognition and financial support to the commons is entirely warranted given the expansive legal and financial privileges that governments have provided to corporations for generations. State support for commons could unleash tremendous energy and creativity for improved stewardship of our planet.

If the commons is going to achieve its promise as a governance template, however, there must be a suitable architecture of law and public policy to support and guide it. Innovations in law and policy are needed in three distinct fields:

General internal governance principles and policies that can guide the development and management of commons.

Nobel Laureate Elinor Ostrom's eight core design principles, first published in 1990, remain the most solid foundation for understanding the internal governance of commons as a general paradigm. In a book-length study published in 2010, Amy Poteete, Marco Janssen, and Ostrom summarize and elaborate on the key factors enabling self-organized groups to develop collective solutions to common-pool resource problems at small-to-medium scales. Among the most important are the following: (1) reliable information is available about the immediate and long-term costs and benefits of actions; (2) the individuals involved see the resources as important for their own achievements and have a long-term time horizon; (3) gaining a reputation for being a trustworthy reciprocator is important to those involved; (4) individuals can communicate with at least some of the others involved; (5) informal monitoring and sanctioning is feasible and considered appropriate; and (6) social capital and leadership exist, related to previous successes in solving joint problems.

Ostrom has noted that “extensive empirical research on collective action…has repeatedly identified a necessary central core of trust and reciprocity among those involved that is associated with successful levels of collective action.” In addition, “when participants fear they are being 'suckers' for taking costly actions while others enjoy a free ride,” it enhances the need for monitoring to root out deception and fraud.

If any commons is to cultivate trust and reciprocity and therefore enhance its chances of stable collective management, its constitutive and oper-

The Taylortown Salt Marsh, preserved by the Aspetuck Land Trust of Westport, CT.

ational rules must be seen as fair and respectful. To that end, ecological commons must embody the values of human dignity as expressed in, optimally, the Universal Declaration of Human Rights and the nine core international human rights conventions that have evolved from it and are applicable. As this suggests, both human rights and nature's rights are implicit in ecological commons governance.

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