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The Commons Angela Mitropoulos Fellow, School of Humanities and Communication Arts University of Western Sydney, Australia

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The Commons Angela Mitropoulos Fellow, School of Humanities and Communication Arts University of Western Sydney, Australia CHAPTER 12 The Commons Angela Mitropoulos Fellow, School of Humanities and Communication Arts University of Western Sydney, Australia The idea of ‘‘the commons’’ is derived from the Latin communis and the Old French comun. It is part of a series of concepts whose meanings draw on ‘‘common,’’ such as community, communion, commodity, communism, and commerce. Common means attributes or prop- erties that are prevalent or shared alike by two or more things or groups of people. As with any word its significance can be shaped by context. Yet the systematic use of a word as a concept involves a framework through which that concept makes sense. For the commons, such systematic use implies the use of legal concepts and history even if that history is not always known or explicit. The commons is a key tenet in the history of common law. That is, the idea of the commons emerged from the property law concept of res communes (meaning ‘‘it is in common’’ or is common property). It did so in contradistinction to the concept of res nullius (‘‘it is no one’s,’’ or no one’s property) and relied on the methodological principle of the recta ratio, or ‘‘right reasoning.’’ This involves principles of valid reasoning, not least how to think about what prevalence means or implies, or what is beyond reasonable debate and should be taken as an indisputable premise. In the ‘‘black letter’’ terms of common law (those things that are taken to be beyond reasonable debate, and usually pertain to property and contract law), ‘‘the commons,’’ or res communes, means ‘‘things common to all; that is, those things which are used and enjoyed by everyone, even in single parts, but can never be exclusively acquired as a whole’’ (Black 1968, 1469). As a tenet of property law, the commons involves assumptions about what it means to share properties and what it means to posit a notion of commonality or preponderance as the basis for resolving questions about the just distribution of goods and resources. The salient concepts in the history of property law in this regard are ius gentium (often translated as ‘‘law, or justice, of nations’’) and ius naturale (or ‘‘law, or justice, of nature’’). During the Middle Ages and the early modern period in Europe, Catholic scholars developed natural law theories (i.e., legal theories developed on the basis of a moral philosophy that posits that the norms or laws that govern humanity are derived from the God-given nature of human beings). By drawing on these theories as well as readings of the ancient Greek philosophers Plato (c. 429–c. 347 BCE) and Aristotle (384–322 BCE), concepts such as gentium and naturale nevertheless have their contemporary analogues; for example, German feminist sociologists Maria Mies and Veronika Bennholdt-Thomsen write of ‘‘the social and the natural household’’ (2001, 1021). Some theories of the commons have retained this historical sense in the emphasis on oikonomia, or ‘‘the law of the household,’’ in the qualitative distinction drawn between social and natural domains, or in the meanings 165 COPYRIGHT 2016 Macmillan Reference USA, a part of Gale, Cengage Learning WCN 02-200-210 Chapter12:TheCommons accorded to concepts such as ecologies, as derived from oikos, to mean a knowledge or ‘‘logos’’ of household management or law (Mitropoulos 2012). This chapter begins by summarizing some of the key concepts in theories of the commons, such as res nullius, res communes,gifteconomy,andoikonomia.Thenext section summarizes the three broad approaches within commons literature: the natural law or normative approaches; the pragmatic or conventionalist approaches of common- pool resource theories and the new institutionalism theories of global governance; and critical theories of the commons. It then proceeds to a brief discussion of the classical commons and highlights the relationships among property law, metaphor, and the recurrent analogical bundling of gender, nature, and property in classical ideas of the commons. The final section outlines the terms of ‘‘the global commons,’’ as this is the context in which contemporary understandings of the commons, as well as the history of its conceptual apparatus, has taken shape.Althoughtheliteratureonthecommons is vast and debates are ongoing, the principal purpose of this chapter is to highlight perspectives on these debates from queer, decolonial, feminist, and critical race schol- ars. Some of the work of this chapter is therefore constructive, drawing together a range of sources both within and beyond discussions on the commons so as to emphasize the historical and epistemological frameworks that underpin theories and concepts of the commons. KEY CONCEPTS RES NULLIUS, TERRA NULLIUS, AND RES COMMUNES Res nullius implies neither regularity nor number, nor does it describe a capacity to reason. It pertains to those goods that are deemed to be unproductive because they are not transformed by labor, and, therefore, as both Dutch jurist Hugo Grotius (1583–1645) and English philosopher John Locke (1632–1704) argued (Miura 2013, 49), the land on which they took place could justifiably be colonized as res nullius.Thatis,res nullius has a similar rhetorical status in Grotian property law as ‘‘the state of nature’’ does in classical Lockean contract theories, in that ‘‘the state of nature’’ is a narrative device that serves to vindicate the emergence of property regimes and colonial possession (Brace 2004, 227). The initial codification of res nullius occurs in contradistinction to res communes (Schermaier 2009). From the eighteenth century on, res nullius refers to ‘‘things which are not the Goods of any Person or Number of Men’’ (Tomlins 2010, 119n81). There is no suggestion in any legal or economic history of res communes that, as with terra nullius (nobody’s land), ‘‘the commons . [is] a wasteland, a res nullius, a place having no owner and no value’’ (Bollier and Helfrich 2012a, 25). The conflation of ‘‘wastes’’ with res nullius is a consequence of Lockean concepts of cultivated land as productive land, an idea that, in turn, has on occasion been used to justify wholesale land transfers and use-conversion, such as that of the 1984 Wasteland Develop- ment Programme in India sponsored by the World Bank (Shiva 1986, 613). Thus deduced from ‘‘the economic nature of man’’ (Lurye 1947, 184) both private property and res communes were distinguished from res nullius in natural law understandings of the commons. Unlike res nullius then, res communes involves a calculus of two or more goods through the use of ‘‘right reasoning’’—the recta ratio. That is, unlike other forms of collective property- holding or use (family estates, the joint-stock company from the sixteenth century that became the modern corporation, or the body corporate of real estate law), ‘‘the commons’’ refers to the means by which to judge the ‘‘right ratio’’ of goods. 166 MACMILLAN INTERDISCIPLINARY HANDBOOKS COPYRIGHT 2016 Macmillan Reference USA, a part of Gale, Cengage Learning WCN 02-200-210 Chapter12:TheCommons IUS GENTIUM AND IUS NATURALE Ius is sometimes rendered as ‘‘law,’’ although it can be translated as ‘‘justice,’’ which places the emphasis not on law in a broad sense but on the just distribution of the good or goods. The means of deciding the valid form of this just distribution falls to the recta ratio. In Christian canon law, the ius commune forms the basis of a theology of contracts. By the end of the seventeenth century, principally through the works of the Spanish scholastics, this theology of contracts would regard them as ‘‘the inevitable means enabling man to navigate his way either to salvation or to the destruction of his material goods—and of his soul’’ (Decock 2012, xviii). Naturale,ofcourse,means ‘‘nature,’’ and concepts of nature are crucial to understandings of the basis on which arguments are made within theories of the commons about the just distribution of the good. Gentium is a far more complex term than nature in some respects, but not unrelated. For some Roman scholars it implied ‘‘the human race,’’ for others ‘‘a race,’’ ‘‘a people,’’ or ‘‘a nation,’’ and still for others a specific family, clan, or tribe (Radin 1914). From the eighteenth century on, these ideas would converge with statistics and were increasingly rendered as the geometric progression of variables and constants pertaining to unique biological entities (Malthus 1960; Hardin 1968; Weeks 1981, 159–163). Contrary to this, some have argued that the biological sciences borrowed its classical model of biological taxa and property inheritance (as with concepts of the transmission of genetic traits as substantive properties) from laws concerning legitimate property ownership and inheritance (Lo´pez-Beltra´n 2007) and that this occurred in the mutually enforcing conjuncture of the similarly ‘‘restricted economies’’ that linked sex to race and nation as a means to affirm (or ascertain the threats to) the nation’s unique reproducibility over time (Weinbaum 2004; Mitropoulos 2012). THE GIFT ECONOMY For some theorists, the commons makes it possible to revive an idea of precapitalist gift economies, which they argue points beyond the transactional logics of the market and the hierarchical form of the state (Vaughan 2007; Polanyi 1983). For others, there is a question as to whether, by contrast, this revival indicates a mythical narrative of origins and ends that hinges on the simultaneous idealization and exploitation of women’s work and nature (Mies and Bennholdt-Thomsen 2001; Mitropoulos 2012; Federici 2012). Inspired by anthropological studies (Mauss 1954) and by Hungarian philosopher of science and economist Michael Polanyi’s definition of the commons as a premodern, nonmarket gift economy (1983), others have suggested that ‘‘the emergent commons movement is providing us with ideas about governance and property that are different than what we have seen with the modern state and market’’ (Milun 2015).
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