Archive for May, 2009

Granting vs confirming rights; commons and commoning; invisibility.

Friday, May 8th, 2009

Few days ago I posted I video of Louis Wolcher’s talk on the meaning of the commons, a discussion that find inspiration from The Charters of Liberty as studied by Peter Linebough in his book The Magna Carta Manifesto. I have extracted here the central part. This extract develops four points. 1) The importance of seeing the state not simply as “granting” rights, but as confirming rights; b) For the state (king) to reach a point of confirming commoners’ rights, implies the commoners were already commoning , i.e. took their own life into their own hands: “”to common was to engage in a form of life in which you took your life, your subsistence, into your own hands and you did not wait at the table for crumbs to drop from the powerful”; 3) commoning or the memory of commoning as a different life was central in building resistence to the later enclosures; 4) the problem is today that — in “ordinary people” at least in the US — there is much little memory of commoning, hence people instinctual reaction to “market failure” and crisis is “the market, more markets, different markets.”

Point 1, 2 and 3 are brilliant and simple points that could be put in the first pages of any handbooks on “how to change the world” if there was such a thing. I think that point 4 is problematic. Not in the sense that it does not reflect some true. It certainly does. But because the commoning is not lost in our lives: it permeates them to a variety of degrees as much as it is “invisible”. There is commoning among workers in offices and factories. There is commoning in schools and hospitals. In neighbourhoods, in social movements milieus, in domestic spheres and there is definitively both commoning and a memory of commoning among the indigenous people, the migrants from the global south and in their original communities. How can we recognise it, how can we reclaim it, how can we “own it” and how can we turn it into a social force?

Anyway, here is the text on “The meaning of the commons” by Louis Walker.

“The notion of the commons in the Anglophone legal tradition is rooted in the a particular kind of historical memory ⎯ one that goes back to the fuedual era and that took institutional form in two founding documents of the english constitution: Magna Carta in 1215 and the great charter of the forest in 1225. Now, these so called charters of liberty are widely remembered today, but they are remembered primarily in only one of their aspects. The aspect I am referring to that most lawyers are familiar with in this country is the one that drew the attention of the founders of our constitution. It is the idea that the king, the sovereign, grants people certain rights and put certain limits on his power ⎯ and so in the famous article 39 of the Magna Carta we find the origin of the due process of low for example and the idea of habeas corpus. So what we have there is the idea of the king, anointed by god, putting limit on himself, restraining himself, and granting you rights. Forgotten or, I should say, barely remembered, is the other aspect of the charter of liberty. It is the notion that the king did not grant but confirmed certain customary practices that people have been engaging in for hundreds of years and which were under threat. I am referring in particular to the right of the people in common to make use of the forests and the rivers for grazing, for firewood, for basic economic needs in common with other in the community.”

“It seems to me that it is extremely important to draw the distinction that I have just drawn between the state, or the sovereign, or the king granting people rights, and confirming rights that people themselves take. In the XXI century, certainly in America, we have been beaten up so much by a positivistic conception of the law and of the state that it is hard for us to think of “rights” as anything other than creation of people that are more powerful than us, creation that are given to us by the powerful. But the customary rights that were confirmed in Magna Carta and the Charter of the Forest, were not given by anyone. They were taken by the people, and they forced the king to confirm what they had already taken. The commons, in this sense, as Peter Linebough so eloquently put in his book, is best expressed as commoning, not a noun, but a verb. People actually expressing not a set of property relationships, but rather a form of life in which autonomy and the ability to meet basic subsistence needs, was something that was in the grasp of the commoners themselves, not something that had to be given to them by a superior authority. Compare that for example to the widespread idea that “welfare” in our society is something that is given by the state, controlled by the state, and that can be taken away by the state. Now, the common in this sense ⎯ and I want to stress this as a matter of law, or rather of legal theory ⎯ was not property held in common. This is an important point. The commons in this original sense was not a tract of land or a forest that the king granted a deed to a group of people, villagers for example, to go in and root around and satisfy their basic subsistence needs. It was not held in common because the very notion of property, of private property is what must be put in opposition to the commons in its original sense, in its original historical memory sense. So, commoning, as a verb ⎯ I guess is a gerund ⎯ to common, how is that? ⎯ to common was to engage in a form of life in which you took your life, your subsistence, into your own hands and you did not wait at the table for crumbs to drop from the powerful. This was what was conferred in the charter of the forests and the Magna Carta in their forgotten or nearly forgotten dimensions.”

“Now the point about this . . .is that the people that commoned and that in some sense were confirmed in their commoning in these charters in the XIII century, their joined cultural memory enabled them to form a point of resistance to effort to extinguish what they have done, to estinguish their form of life. And when the landed nobility in England engaged upon the process known as the enclosures, which in our terminology would be the creation of private property rights owning their ultimate force to a grant from the king, there was a resistance possible precisely because people could remember in their life-time, or in the life time of their parents and grand parents, a different form of living.”

“ . . .Now I think that the distinction I have drawn between the commons and commoning goes to the very hart, in my interpretation at least, of the meaning of the commons. And its most important salience for us today in a world that is melting, is its political importance. If we think of the commons as commonly owned resources then we imagine begging government, the powerful, the technocrats, for a solution to our problems, as we cowar in our homes waiting for the floods to raise. On the other hand, if we think of commoning in its original sense of an ungranted, unscripted form of life, then the possibility just begins to open itself. For us to freely create the future in common with one another . . .”

“There is however a very grave problem with this distinction that I have drawn between commons and commoning, the commons as some sort of property concept and commoning as a form of life. In the XIII century in Europe commoning as a social practice was bread into the bones of the people, it was one of the elements of social construction of reality that people did common. They accepted it as normal, as part of life. And so when a threat came to it, they had a memory, something to fall back on. We are in a less fortunate position. Because the enclosures, the marketisation and globalisation of this world with the notion of private property and global capitalism has eclipsed the commons imagination to such a degree that we have lost contact with this earlier memory if ever we had it . There is nothing for us to fall back on, or, to put it differently, for most people, ordinary people, the only solution they can think of to the failures of the markets that are rawling us right now in so many different ways is the market, more market, different markets. And so, unlike the medieval peasants or the medieval commoners we do not have this cultural memory of a different way of being, or at least the average person does not in the United States. And that present a problem”.