The Commons and the Future of Law

Article by Colleen Chung *


pp. 63-76

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Nowadays, non-state entities such as trade organizations, internet groups, corporate bylaws, and private regulatory bodies exercise enormous influence over social lives. They have their own norms that fill gaps in state regulation, and at times, trump state law. For instance, Amazon functions as a private actor in conjunction with the State in the way it has cities doing their bidding on where to place their headquarters and influences factors such as wages and housing prices. Such incentive deals between corporations and local governments blur the lines between state and nonstate actors in the lawmaking process, bending state laws towards shared economic means. Other influential actors are banks and credit agencies in the U.S. which were responsible for setting off financial deregulation resulting in the Great Recession and are on their way to do so again. In this case, both state and nonstate actors colluded to overturn state laws like the Glass-Stegall Act and clear the way for future mergers which in turn, result in major local and global ramifications.

Maintaining integral pluralism “is desirable as a source of alternative ideas and as a site for discussion about community definition and creative innovation”[1] and “is part of a dialectic of power and counterpower.”[2] In this way, law is an ongoing process defined by conflicting norms. Law is not an infallible indicator of universal values but an arena of conflict where different visions of alternative futures can be put up for debate.

However, challenges arise when the State becomes highly reliant on the “expert” input of private actors in carrying out legislative and administrative functions, thus raising issues of legitimacy and privatization/marketization of the lawmaking process. This is none the more evident than in market enclosures in the form of privatization and marketization of shared resources by corporations, investors, and speculators in collusion with the government. Legislatures and courts are complacent in this by saying that it is for future economic growth and freedom but the reality is far from it. Society must do more than embrace conflict to maintain a kind of legal pluralism. It must start thinking about new forms of law altogether.  What would it look like if the people invent their own types of laws to protect their community and shared resources? What if there were a more rigorous Law for the Commons?


As American activist-policy strategist David Bollier put aptly, the commons is a social system by which communities manage resources with the aim of preserving shared values and community identity, with minimal to no reliance upon the State or market systems.[3] It can more broadly be thought of as the natural resources, civic infrastructure, cultural works, social traditions, and shared bodies of knowledge that are collectively passed down through generations and have of lately come to be privatized by the market. Although the commons is known to flourish under various conditions, there is a set of agreed-upon principles for “commoning” that all have bottom-up participation, personal responsibility, transparency, and self-policing accountability at its core:

  • Commons resources must be created/maintained together as gifts of nature and its usage guaranteed to everyone
  • Commons resources that are created/maintained are used-time, space, technology, and resources that are available in a given context are used freely
  • Commoners participate in an open-source process in which they enter into/modify their own rules and commitments in order to maintain and preserve the commons for their needs
  • Commoners monitor the respect given to these commitments and continually reassess whether the commitments serve their purpose
  • Commoners deal sanctions for those who violate their commitments
  • Every commoner will make use of a space and means for effective conflict resolution
  • Commoners regulate their own affairs with external authorities respecting their wishes
  • Every commons is part of a larger whole, coordinating stewardship and cooperating with one another[4]

Such a generative system ensures that the law operates according to community norms and values in ways that lead to the sustainable use of the commons overtime. This is in contrast to the current conception of law as abiding by the interests of private property, thereby expanding instrumental relations into every aspect of life. 


In one of the most revolutionary uprisings of the contemporary period, Subcomandante Marcos, the spokesman of the Zapatista Army of National Liberation during the 1994 Chiapas revolt, evoked the Magna Carta to describe what he called the destruction of the ejido or traditional commons of Mexico. Calling for the establishment of people’s rights to common resources, the army was able to win autonomy for dozens of indigenous communities and give them the material support they needed. That centuries-old document is still as relevant as ever today when it comes to understanding the commons. 

Besides being the first formal document to state that the monarch was not above the law of the land, thereby allowing for fair representation of those who were taxed, the Magna Carta (Great Charter) of 1215 established the political and legal rights of the poor to use the commons to earn their living— At the time, “forest privileges” were being sold to make profit for the King of Normandy, which angered much of his constituents who wanted the forest to be open to all. From this prolonged struggle for subsistence rights spawned the Magna Carta along with its equally important companion, the Charter of the Forest, which provided commoners with explicit legal rights to use forests, pastures, rivers and other natural resources to meet their daily needs.

This is instructive in showing that when a ruler’s power was curtailed, peasants had more rights to commoning or providing for their livelihood as a community. “Political and legal rights can exist only on an economic foundation. What I shall call the commons— the theory that vests all property in the community and organizes labor for the common benefit of all—must exist in both juridical forms and day-to-day material reality.”[5] In short, guarantees of civil rights are only as strong as guarantees of economic justice.

For hundreds of years since then, there have been countless public trust doctrines for water and other natural resources. According to feminist historian of the commons Silvia Federici, the commons have been historically instrumental in the daily production of many small farmers who depended on access to meadows for virtually every aspect of their lives. It encouraged collective decision-making and work solidarity, and for women, provided them a space for a vibrant social life.[6] However, with the advent of land privatization and individual labor contacts, the commons came under attack and brought with it the breakdown of social cohesion, disintegration of families, and economic inequalities. 


As a highly-integrated social system, the commons did not have to abide by formal law, instead relying upon customs and social norms for centuries. With the advent of modern capitalism, however, Enclosure Acts came to be enacted throughout the West. In Europe, land that was previously under community use began to be privatized for intensive cultivation. Farmers, hunters, and shepherds who once depended on the land for their livelihood found themselves shut off from it and forced to migrate to cities. Similarly, the Homestead Act in the U.S. had the effect of driving Native Americans off land that was rightfully theirs.[7] Modern capitalism and the privatization of land that came with it, have allowed the West to become the economic superpower that it is today, but with that, came the displacement of the working poor, Native Americans, and minority groups that continues today. 

Modern global commerce, technology, and conventional law have made it so that the logic and values of the market system have been superimposed on virtually every facet of social life. Scholars of the commons call this “enclosure- the privatization and commodification of shared resources that belong to a community, usually for private market gain.”[8] To use an example, the World Bank has reframed seas, water resources, and forests as “global commons” which is grounds for their enclosures and impinges upon the lives of aboriginal peoples. The World Bank has also prompted land reforms in Africa that are “community-based” but are actually based on commercial interests. In countries all around the world, the poor are expropriated from their land by the World Bank with multinational corporations using them to construct export zones for cheap production in their wake.[9] The people of the world know that should their commons, their means of social and economic sustenance be destroyed, they would have to forgo their communities to enter the market system and become consumersemployees for life. And they are not going without a fight. 


People the world over are devising new legal mechanisms to protect the commons from predatory market activity and open space for liberatory projects. Sharing Cities: Activating the Urban Commons showcases a range of community-based solutions to challenges of the modern commons, showing that there are indeed many alternatives to capitalism (TAMA). To provide a few cursory examples, COOP Taxi in Seoul utilizes ride-hailing technology with driver ownership and control of the business, thereby prioritizing worker control over investor control.[10] In Buenos Aires, Club Cultural Matienzo (CCM) pioneered a safe and legal worker-controlled business model for cultural spaces that spurred the growth of more cultural spaces in the wake of a terrible fire. Because of their solidarity, an entire community of artists and young workers felt supported in the aftermath, which is a far cry from the usual club scene that exploits everyone who is in it. Yet another policy representing a new commons-based paradigm is the City of Bologna’s Regulation on Collaboration Between Citizens and the City for the Care and Regeneration of the Urban Commons, which provides a legal framework for citizens to directly care for urban commons such as parks, streets, cultural assets, and schools, and as well, create public assets and services.[11] Such legal mechanisms place people not the market, technology, or the government at the front and center. It is time for yet more visionary ideas to challenge the failing status quo


From this dwindling confidence in state law, sprung a new arena of sociolegal innovation that serves as an enabling tool for commoners in dealing with the State and market system. Law for the commons aims to protect land and resources from further expropriation and construct the legal governance needed to do so. Its main tenets are that societal needs should be prioritized rather than those of capital investment, corporate power, international trade, and other like institutions, and in order to achieve this, institutions need to be built to encompass an array of interactions beyond the typical producer/consumer dyad. Seeing that this change is systemic, it will require initiatives in all sectors— in governance, workplaces, informal neighborhood networks, culture, etc. and at the local, regional, national, and global levels.

On a theoretical level, law for the commons aims to close the gap between law and legality. Law refers to formal state law and its bureaucratic procedures while legality refers to the broader social norms and cultural practices that are commonly recognized as legal and struggle to be asserted through law, political struggles, and cultural expression.[12] Law for the commons recognizes the limitations of formal state law in fully embracing social norms and procedures, and so, it seeks to account for law’s operation in social life. Utilizing the powerful concept of legality, it sees everyone as legal agents in the making of social action and every setting as an opportunity for that social action. “To discover the law outside of formal legal settings, we must tolerate a kind of conceptual murkiness. Instead of relying on the doctrinal definitions of, for instance, private property, we must acknowledge and try to fathom the significance of ‘property’ as it is claimed, used, protected, and fought over in the social spaces outside of official agencies of law.”[13]

This realization that the law shapes social structures and interactions is critical to developing legal institutions that can protect the commons, and more importantly, the legally conscious players needed to do so. Ewick and Silbey have shown that the shifting legal consciousness central to law’s hegemony, paves the way for resistance as legality rests on its ability to be played like a game. This is no more evident than in disputing as an arena for expressing a more persuasive vision of social reality. In Governing the Commons, political economist Elinor Ostrom outlined three cases in which commoners have used the law to strengthen their collective impact against the state and market system. In the Raymond Basin negotiations, water users were able to end the pumping rights of water companies by creating a governance structure for the basin through the adjudication process. In the Central Basin litigation, the avenue of court litigation (a means of last resort) was used to negotiate settlements of the individual rights to water, so that eventually, an interest group sponsor saved them a considerable amount of time and money. Lastly, in the West Basin negotiations, water users adjudicated their water rights to regulate their basin. Thus, Ostrom’s piece revealed that legal relations governing resources invisibly structure the commons whether or not it was realized, and if they were to be used successfully, reorganization of “have-not” parties must occur.[14]

We can also look further to the following examples of commons-based law/legal innovations for the commons, in order to help reimagine governance, economics, politics, and social practice in systemic ways that encourage cooperation and sharing:


Community land trusts are nonprofit organizations that maintain community control of property outside conventional, speculative land and housing markets. They are typically formed with the intent of preserving land for affordable housing and other community uses. On CLTs, lowerincome families are allowed to buy homes and secure long-term leases on the land from the CLT, which retains ultimate ownership of the land. They along with other residents of the CLT and municipal officials form a tripartite structure that oversees the responsibilities of creating homeownership units, developing rental housing/commercial space/community facilities, assembling land, and preserving housing affordability. CLTs initially rely on either public or private donations of land or government subsidies to purchase land on which housing can be built. They then use the funds to cover housing development so that the homes can remain affordable for many years. The ultimate strategy is the maintain “a stock of permanently affordable, owner-occupied housing” as well as a wide variety of urban commons development.

Vermont’s Champlain Housing Trust, the largest community land trust in the U.S., proves how effective CLTs are in expanding affordable housing. It oversees 565 homes and 2,200 rental apartments with homeowners paying average costs of $6,000-8,000, the down payment being covered by state and federal grants. In 2015, 44 new CHT residents purchased homes at an average CHT net price of $137,214, for an average CHT monthly cost of $994.78.[15]


Housing cooperatives are also nonprofit organizations in which residents join on a democratic basis to own property and partake in decision-making. They have a broader governance structure to ensure that all residents of the community are represented; this is usually done through boards of directors and their various committees. The benefits are such that each resident/family owns a share in the co-op and thus, owns the building in which they live as a collective rather than a singular living unit, as well, co-op monthly payments are made on an atcost basis to collective property expenses rather than some ambiguous middleman.

CoAbode is an example of a housing cooperative that “socializes” the financial and responsibilities of housing. Matching single mothers for shared housing and parenting support, it reduces the burden of parenting— namely costs of food and childcare and lack of free time.

CoAbode now has 120,000 members registered in many U.S. cities.[16] 


Although similar in many respects to housing co-ops in terms of governance, real estate cooperatives raise capital to invest in their communities as opposed to developing urban areas, which paves the way for bubbles in housing prices. By using legal mechanisms to take housing off the speculative market, housing affordability is ensured over the long term. Specifically, legal restraints on transfer at below-market rate that ensure subsidy retention are absent, so that buyers of community land trusts or housing co-ops can benefit from the subsidies given by the community land trust or city/state without offloading it onto the next homebuyers.

The most illustrative example combining the best of community land trusts, housing co-ops, and real estate cooperatives is the East Bay Permanent Real Estate Cooperative, which has been described as an “impressive commons legal institution that is aimed at the decommodification of housing”. Operating on principles of economic democracy (shared wealth), the real estate cooperative is democratically controlled with resident-owners paying dividends according to their level of participation (consumer, worker, resident-owner, investor). It has raised capital of $1000 per individual to assist them in acquiring bank loans, which ultimately grows community wealth and allows for equal participation in the investment process. As a result, East Bay Permanent Real Estate Cooperative has launched a formidable movement for affordable housing.[17]


In order to ensure the smooth functioning of all three types of commons-based legal institutions, there needs to be a foundation for cooperative law. Typically, a strong cooperative law will support multi-stakeholder cooperative initiatives that collectivize and centralize basic overhead services such as administration, personnel, and accounting. This will be needed to take sectors out of the market system. It will need to take note of new developments in cooperative governance calling for community control of assets and enterprises such as safeguards against market buy-outs and large wage gaps, fair and balanced wages, and shared public resources. It may also want to look to open co-operativism, which relies on the co-op model to carry out crowdfunding and knowledge crowdsourcing through online platforms to avoid conventional market providers. Such laws integrating these elements are part and parcel of the reinvention of law for the commons. 


Lastly, a newly emerging law for the urban commons is transforming market-governed spaces into those governed by the principles of bottom-up participation, personal responsibility, and transparency. One need only look to the treasure trove of legal frameworks worldwide to draw inspiration for a commons-based governance in the city. 

As described above, the City of Bologna’s Regulation on Collaboration Between the Citizens and the City for the Care and Regeneration of the Urban Commons, provides a legal framework for citizens to remake local government by seeing their own urban commons ideas through the process. Instead of relying on formal state law and the bureaucratic procedures resulting from it, citizens have been initiating their own projects that involve social services, digital innovation, urban creative, and collaborative services. Another similar concept, participatory budgeting, was pioneered in Porto Alegre Brazil but has gained tremendous popularity in the U.S. as more and more citizens are engaging in the process of budget allocation. 

Germany’s SSM (Socialist Self-Help Mühlheim) is notable in that it arose out of a squatting tradition, after which the Verein or community-controlled legal association negotiated with the city of Cologne to sign a rental contract for the distillery buildings. Those assets were used to generate revenues to sustain itself as a nonprofit, and the buildings have since served as an event hall, furniture storage, secondhand store, and communal housing for anti-capitalist activist SSM members. “SSM is a commons because it relies on self-organized governance and public-spirited action, combined with the self-reliance, sense of responsibility, and ecological commitments of its members. It is a living social system that is independent and durable, and therefore able to enter into constructive engagements with both the market and state.”[18]

Two California-based legal organizations, Shareable and the Sustainable Economies Law Center, have sought to promote innovative legal mechanisms that place sharing and cooperation at the center of the urban commons. In their report, Policies for Shareable Cities, they have included such recommendations as carsharing, ridesharing, cooperatives, urban agriculture on vacant lots, shared housing, shared workspaces, and home-based microenterprises connecting supply and demand at the peer-to-peer level. In this way, simple changes in local taxes and other policies can help elevate social exchanges beyond that of the producer/consumer dyad. Again, this change will be systemic, requiring initiatives from all sectors. 

Lastly, another legal tool that has great implications for major cities especially New York City, is The Netherland’s The Convention on the Use of Space. It is described as legal instrument to protect and occupy empty space for non-market uses such as living, knowledge and skill sharing, protest, wealth and labor distribution, and refuge from environmental destruction. Written in collaboration with lawyers, activists, academics, squatters, and cultural workers, the document only functions as a tool against eviction unless it becomes legalized by the national or municipal government, then the Convention will better reappropriate property for the common good (Convention on the Use of Space).[19]


Law for the commons can help change the law shaping social structures and interactions from one of market relations to one that genuinely reflects community norms and values; its legal mechanisms can protect land and resources from further expropriation and construct the legal (anti-capitalist) governance needed to do so. And it does so by seeing everyone as legal agents capable of social action and every interaction as capable of cooperation, sharing, transparency, and self-policing accountability- characteristics which are shunned by the neoliberal policy consensus. It trusts that they can devise their own forms of governance to meet their community’s needs and doesn’t try to impose what no longer works— the politically corrupted, formality-driven bureaucracy and market system— upon them. 

Law for the commons also has the effect of potentially transforming governance through policies and institutions, workplaces, informal neighborhood networks, and the wider culture, reflecting the grassroots nature of social change. Some that come to mind include initiatives for economic democracy that call for cooperative models and public control of financial capital and other anticapitalist movements that challenge oppression of women, minorities, and indigenous peoples on all fronts. More specifically, citizens can wield the law against the market to combat its inequities by ensuring access to fundamental resources as a human right, changing the structure of property and contract entitlements to allow for shared use of resources and unrestricted transfer rights, enacting through legislation the recognition of worker cooperatives and other entities that don’t operate solely for profit, and adopting a “copyleft” policy to shift intellectual property ownership to that of sharing and collaboration. By shaping law for the community, real social change will occur in public policy, governance, and the economic structure. 

A law for the commons might begin with reorganization of “have-not” parties. Citizens, working together with lawyers and policymakers, can overcome the liberal-capitalist bias and limits of our Constitution and work towards new policy directions. They can learn lessons from public interest law, which uses community organizing, class action, test-case strategies, and increase of legal services, to increase the stakes of the repeat-player by creating a unit of tenants/consumers/citizens who desire rule-change (unions, rights associations, interest group sponsors). This would require high-level coordination and organization to secure favorable rule change, implementation, surveillance, and monitoring. “Parties capable of pursuing long-range strategies can generate effective demand for high-grade legal services— continuous, expert, and oriented to the long run, and pressure for institutional reforms and favorable rules.”[20] Ideally, reorganization of “have-not” parties will culminate in mobilization of commons-based law to challenge and eventually reconstitute institutional order. Specifically, McCann commended that rights advocacy in combination with any or all of the following:

litigation, public demonstrations, legislative lobbying, collective bargaining, media publicity, and other legal tactics, have proven useful as a legal mobilization tactic when rights claims are made to appeal to justice.[21] Drawing upon the example set by the American civil rights movement, mobilization of commons-based law can implement a program of litigation to challenge the power of the World Bank, multinational corporations, and landlords who appropriate land from marginalized groups and provide the latter with resources for defiant action. In addition to legal action, it can mount pressure on such institutions to halt enclosures and displacement of people from their land by initiating more radical forms of mass protest such as direct action, tent city formation, and rent strike. Attention to backlash will also be needed to forge a successful legal mobilization. 

The Italian commons movement can provide an instructive example for future legal mobilization— it used political confrontation to challenge neoliberal market forces and the notion of private property underlying them and provide a counterhegemonic force against them. It demonstrated that mobilization of commons-based law can be accomplished through counterhegemonic uses of the law to construct alternative modes of resource governance and management that are not steeped in liberal-capitalist logic. Such that the “Water as a Common” movement mobilized 27 million people to vote against privatization by the Ronchi Decree, leading to an official referendum to protect common goods. And it was the collective effort of scholars who drafted the civil code, lawyers who fought against privatization in courts and organized communities into legal associations, activists who rallied public support for the referendum, and most importantly, citizens who worked to defend their commons.[22]

The above examples of community-owned enterprises and grassroots networks as well, showcase that true change cannot occur in relative isolation but must occur simultaneously in order to affect real change. 


While commons-based law can be seen as deferring to instruments of the State in order to achieve social change, it actually does much more. It works as a tactical feint and political necessity in pursuing long-range strategies for institutional reforms across all sectors. It has the advantage of offering unique perspectives that point to a vision of law, political economy, and culture vastly different from the ineffective liberal-capitalist modes. However, while it has the ability to upend how institutions (particularly market systems) operate, a commons-based orthodoxy is not a cure-all but rather a participatory process to be partaken by all commoners.

Another critique is that commons principles can easily be co-opted by commercial interests such as Facebook, Uber, Airbnb, Task Rabbit, and other “sharing economy” capitalist ventures that merely profit off feel-good principles and as a result, lead many cooperative models into quasicorporatism and managerialism. Although no institutional forms are immune to the ingrained logic of capitalism and the advantages of landlords and creditors are deeply rooted in common law, cooperative models will need to surpass market-dominant corporations in providing quality social services by creating multi-stakeholder models and digital platforms for post-consumerist social mores.

Of central importance to the idea of the commons is what happens when community norms and values are forgotten and subsumed into individual interests that seek to maximize their gains all the while collectively exploiting the land. This is popularly known as the tragedy of the commons and it must be countered not by further privatization or state ownership of land, but by shared management of resources under clear rules and an established form of representative decisionmaking.


In the end, the ideology of corporate capitalism is just that: an ideology that is taught in schools and universities, in media depictions of success and failure, and in self-advertisements. If perhaps enough people are made aware of law’s operation in daily life and more importantly, the ways it can be used to reshape governance, economics, politics, and social practice for cooperation and sharing, then uniting one-shot players may be all we need. After all, real change will occur bottom-up through the creation of mass movements challenging capitalism’s grow-or-die imperative. 

“Bringing key players together could produce important synergies for activism and legal work… these varied and rudimentary commons-law initiatives face real dangers if they are not brought together. If they are not consolidated and coordinated into a new and larger effort, it is quite likely that many of them will quietly disappear or be absorbed or coopted into the prevailing neoliberal order.”[23] 

[1] Berman, P. S. (2009). The new legal pluralism. Annual Review of Law and Social Science5, 225-242.

[2] Merry, S. E. (1988). Legal pluralism. Law & Soc’y Rev.22, 869.

[3] Bollier, D. (2017). Reinventing law for the commons. In Law and Policy for a New Economy. Edward Elgar Publishing.

[4] Ostrom, E. (1990). Governing the commons: The evolution of institutions for collective action. Cambridge university press.

[5] Linebaugh, P. (2008). The Magna Carta manifesto: Liberties and commons for all. Univ of California Press.

[6] Federici, S. (2011). Women, land struggles, and the reconstruction of the commons. WorkingUSA14(1), 41-56.

[7] Felice, F., & Vatiero, M. (2012). Elinor Ostrom and the solution to the tragedy of the commons. Il Sussidiario.

[8] Bollier, D. (2014). Think like a commoner: A short introduction to the life of the commons. New Society Publishers.

[9] Federici, S. (2011). Women, land struggles, and the reconstruction of the commons. WorkingUSA14(1), 41-56.

[10] Gorenflo, N. (2017). Activating the Urban Commons. Communities, (177), 40-46.

[11] Sharp, D. (2018). Sharing cities for urban transformation: Narrative, policy and practice. Urban policy and research36(4), 513-526.

[12] Ewick, P., & Silbey, S. S. (1998). The common place of law: Stories from everyday life. University of Chicago Press.

[13] Ewick, P., & Silbey, S. S, op. cit., pp. 20-21.

[14] Ostrom, E. (1990). Governing the commons: The evolution of institutions for collective action. Cambridge university press.

[15] Davis, J. E., & Jacobus, R. (2008). The city-CLT partnership: municipal support for community land trusts. Lincoln Institute of Land Policy.

[16] About Cooperatives. National Association of Housing Cooperatives,

[17] Bailey, S. (2018). How the East Bay Permanent Real Estate Cooperative Is Pioneering a Model for Equitable Housing. Shareable, available at

[18] Bollier, D., & Helfrich, S. (Eds.). (2015). Patterns of commoning. Commons Strategy Group and Off the Common Press.

[19] Convention on the Use of Space.

[20] Galanter, M. (1974). Why the” haves” come out ahead: Speculations on the limits of legal change. Law & society review9(1), 95-160.

[21] McCann, M. W. (1994). Rights at work: Pay equity reform and the politics of legal mobilization. University of Chicago Press.

[22] Bailey, S. (2018). How the East Bay Permanent Real Estate Cooperative Is Pioneering a Model for Equitable Housing. Shareable, available at

[23] Bollier, D. (2017). Reinventing law for the commons. In Law and Policy for a New Economy. Edward Elgar Publishing.

* Ms. Colleen Chung is an M.A. Candidate at The Graduate Center, City University of New York whose research focuses on international human rights law and critical legal theory, with a particular interest in property relations. The author can be contacted at