Zurich Doctoral Workshop The Law of the Commons Prof Ugo Mattei (University of California, Hastings College of the Law) University of Zurich, 24 November 2016 The workshop “The Law of the Commons” will focus on the complex relationship between commons, law and democracy During the last decade, the concept of commons governance has become somewhat popular as a possible answer to the supposedly interrelated ecological, economic and political crises: global warming and the degradation of the environment; the instability of markets and the rise in economic inequalities; and finally what some political scientists have coined “post-‐democracy.” This general interest in commons was strongly enhanced when Elinor Ostrom won the Nobel Prize in Economics in 2009 for her life long work on the sustainable self-‐ governance of common pool resources The commons is an interesting concept for political and legal philosophy, because it forces one to rethink conventional and fundamental epistemological and ontological categories concerning our relation to nature and our understanding of human rights, property rights and democracy Commons are often understood as resources that are, or should be, held in common The most usually cited commons are those of water, air, forests and pastures that enable people to live by supporting their material reproduction and providing a clean and healthy environment Besides these natural resources, other forms of common resources can include the genomes of living organisms, knowledge, public services, the Internet or even food, firms and the market For some of these, it remains unclear how such goods should be conceptualized as commons Furthermore, it also remains highly contested which resources should actually be defined as and held in common The focus of the workshop will thus be to discuss the justifications and conceptualizations of different resources that should, or explicitly should not, be held in common Here, we will analyze how the access to specific common resources could realize the human right to life and a (sustainable) livelihood Of special interest will be the differentiation and relationships between private, public and common property, or, put somewhat differently, between the market, the state and the commons In turn, we will discuss how commons can be democratically and sustainably governed on different scales, ranging from the local to more complex and global resources and institutions This workshop will provide doctoral students with the opportunity to present and discuss their work on the commons from diverse perspectives, yet with a focus on political and legal philosophy After the workshop, Ugo Mattei will hold a public lecture with a following discussion on his new book The Ecology of Law (2015) Preliminary Program Date: Thursday 24 November 2016 Room: KOL-‐G-‐223 Address: Main Building of the University of Zurich, Rämistrasse 71, 8006 Zürich 10:15-‐10:30: Arrival of the workshop participants (with coffee and croissants) 10:30-‐10:45: Welcoming of the workshop participants 10:45-‐11:45: Christine Frison: Planting the Commons: Towards Redesigning a Global Seed Commons 11:45-‐12:45: Jose Luis Vivero Pol: Conceptualizing food as commons and public good: the conflicting epistemologies and normative views of a vital resource 12:45-‐14:00: Lunch 14:00-‐15:00: Athanasios Priftis : The Credit Commons: Α commoning protocol of monsters 15:00-‐16:00: Lukas Peter: The Market as a Commons: Democratizing the Market Between Anarchy and Leviathan 16:15-‐16:30: Break 16:30-‐17:30: Samuel Cogolati: Global Public Goods or Commons as a Lens to Development? A Legal Perspective 17:30-‐18:00: General discussion of presentations and workshop wrap up 18:00-‐18:30: Break 18:30-‐20:00: Public Lecture by Ugo Mattei on The Ecology of Law in room KO2-‐F-‐153 20:30-‐open end: Workshop dinner Abstracts (in alphabetical order) Samuel Cogolati: Global Public Goods or Commons as a Lens to Development? A Legal Perspective In the field of development cooperation, two normative approaches have recently gained a prominent place On the one hand, since the series of three books on global public goods edited by Inge Kaul and her colleagues of the United Nations Development Program (UNDP),1 it is now considered to be in the self-‐interest of donors to cooperate and to combat the negative externalities that could arise in the absence of global public goods, such as, climate change mitigation, biodiversity or eradication of communicable diseases Put differently, development is not regarded as a matter of pure altruism anymore On the other hand, since the landmark book “Governing the Commons” by Elinor Ostrom, the concept of commons has likewise evolved into a powerful alternative paradigm to rethink development beyond the market-‐State dichotomy at the global level The research question contained in the title – “Global Public Goods or Commons as a Lens to Development? A Legal Perspective”, embodies the objective of my presentation, that is, to unravel contradictions between both development paradigms and shed new light on their respective normative added value, not only for official development aid programs, but also for international law From a legal perspective, what is so distinctive about framing development in terms of commons or global public goods? How are both notions of development translated into legal vehicles? In answering these questions, particular attention will be devoted to the policy discourse and operations of the World Bank, which still remains the world’s foremost development agency with near global membership and with the single largest source of net income My argument is that, instead of assimilating commons to global public goods, both analytical and normative frameworks should be cautiously distinguished as they bring forth different legal mechanisms for development Indeed, in contrast with the commons approach, which promotes strengthened collaborative input in governing common resources, decisions in the global public goods model appear to be largely legitimised through a narrow criterion of economic efficiency In this vein, whereas legal institutions based on global commons favour bottom-‐up initiatives of citizens to counter the traditional private-‐State divide and to respond to threats to our common heritage, the urgency to produce global public goods seems to justify a turn to new public-‐private partnerships (PPPs) in development cooperation – such as the Gavi Alliance or the Global Fund to Fight AIDS, Tuberculosis and Malaria in the case of the World Bank’s operations The risk with the global public goods rhetoric is then to reintroduce privatisation as a method of development and narrow development programmes to market-‐efficient services, at the expense of the most marginalised and voiceless groups Contact: samuel.cogolati@kuleuven.be Inge Kaul et al., eds., Global Public Goods: International Cooperation in the 21st Century (New York: Oxford University Press, 1999); Inge Kaul et al., eds., Providing Global Public Goods: Managing Globalization (New York: Oxford University Press, 2003); Inge Kaul et al., eds., The New Public Finance: Responding To Global Challenges (New York: Oxford University Press, 2006) Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (Cambridge: Cambridge University Press, 1990) Cristine Frison: Planting the Commons: Towards Redesigning a Global Seed Commons The overall goals of the International Treaty on Plant Genetic Resources for Food and Agriculture (the Treaty) are food security and sustainable agriculture The Treaty entered into force in 2004 and rules on the conservation, sustainable use, and multilateral access and benefit-‐sharing of seeds for food and agriculture Due to the “special nature” of plant genetic resource for food and agriculture (i.e: seeds), Contracting Parties to the Treaty consider seed management as a “common concern of all countries”, which necessitates a multilateral regime approach To this end, they created the multilateral system of access and benefit-‐sharing of the Treaty This paper summarizes a doctoral research on the analysis of the common management system of seeds within the Treaty The thesis evaluates how the Treaty reaches its set objectives, using the theory of the commons The study is conducted at two levels: a legal analysis of the Treaty and of its implementation instruments and a stakeholder analysis, leading to the identification of conceptual constraints to an effective implementation Following this double reading of the Treaty, the research results are analyzed in light of the theory of the commons, with the aim to assess if and how the literature on the commons may contribute to help Contracting Parties reach the overall goals of the Treaty: i.e food security and sustainable agriculture by improving what has been qualified as a Global Seed Commons The research demonstrates that the Treaty lies on a dual discourse where there is a clear will to design an effective global seed commons in which seeds would be accessible to all its stakeholders, including smallholder farmers, in order to reach food security and sustainable agriculture, but where practice shows that the seed commons is only effective for researchers and breeders There is a clear contradiction within the Treaty’s objectives and obligations, in particular regarding the limited recognition of Farmers’ Rights at the international level Doing so, the Treaty is not able to reach its objectives, and does not mitigate the imbalance of rights opposing smallholder farmers and big agro-‐chemical multinationals on the issue of the appropriation of seeds and their related knowledge Building on these results, I identify specific underlying principles from the analysis of the global seed commons, which I believe should be better applied in order to mitigate the identified conceptual constraints and contribute to the realization of the Treaty’s overall goals I plea for a deeper and true global seed commons for all its stakeholders in order to face major social challenges such as producing sufficient and quality food in times of climate change and persisting world hunger and poverty Contact: christine@qalpit.com Lukas Peter: The Market as a Commons: Democratizing the Market Between Anarchy and Leviathan Within the literature on the commons, it is generally assumed that commons are to be understood as institutions “beyond markets and states.” In contrast to this assumption I will argue here that in order to deal with the tragedy of the commons, we must deal with the problems of specific market arrangements The thesis of this paper is that the tragedy of the commons is nothing other than a tragedy of the market: the (self)destructive dynamic of competitive market mechanisms By reframing the problem in this manner, the tragedy of the commons can be overcome through the democratization of the market, ultimately transforming an open-‐access, competitive market order into a cooperative and sustainable market commons In order to demonstrate this, I will begin my analysis with the main and widely held justifications of a market economy: (1) that individual property rights secure individual freedom, in the form of non interference, and (2) that the competitive exchange of property in markets eliminates monopoly, lowers prices for consumers and leads to economic efficiency In more general terms, the competitive markets should create freedom and wealth for all Here, I will focus on the work of Friedrich August von Hayek, not only because of his influence on the Ostroms, but also because he provides a strong defense of free, “spontaneous” and adaptable markets structured through a rigid, quasi-‐ transcendental and technocratic rule of law that limits democratic interventions I will show, however, that such an open-‐access competitive market arrangement is highly problematic, because it leads to antagonistic relationships structured as prisoners’ dilemmas that not only destabilize its own functioning, but undermine its social and ecological preconditions Shortly put, “free,” competitive and spontaneous markets undermine both individual and collective liberty In a second step, I will shortly discuss different suggestions of how to deal with this problem, as proposed by John Rawls, the Ostroms and critical or “neo-‐Marxist” literature on the commons I will argue, however, that these approaches are inadequate, because none of them attempt to transform the problematic market mechanisms themselves In order to deal with this, we must reconceptualize core concepts of liberal market arrangements Firstly, we must rethink the individual not as independent, but as first and foremost a socially and ecologically interdependent being Here, social and ecological freedom is understood as a prerequisite for individual freedom This then forces us to redefine property rights in which full ownership is replaced with the individual or collective guardianship of common resources In turn, this enables us to redefine economic activities as interdependent enterprises accountable to the wider public and market arrangements as public, democratic commons This shift in perspective forces us to deal with conflicting interests not merely through the price mechanism, but also through deliberation This ultimately – or hopefully – should lay the groundwork for a legal framework in which people can democratically shape economic activities and institutions according to the diverse values that they collectively desire to realize Contact: lukas.peter@uzh.ch Athanasios Priftis : The Credit Commons: Α commoning protocol of monsters The Commons discussion proliferates on natural resources and material reproduction When this discussion happens, it tends to distance itself from the “digital commons”, as the latter should be understood as something different: an area of instability, of undefined laws, or even of abuse We would like to contribute to a law of the commons discussion with an approach that considers the digital, as a potential state of any resource that can be thought and transcribed under a binary process In this sense, (de)materialization is never definite or stable, it is, primarily, a view of how differentiation and relationships between private, public and common property are constructed Our starting point is that debt follows this exact line of thinking: it is, at the same time, material and immaterial, local and transnational, private and public.In sociological theory, all money is debt (Ingham 2004) and for any debt, the collateral guarantees to the lender that if the debt is not repaid the value of what was lent is not lost We would like to push this idea further by examining mutual credit, as an endogenous money creation process, particularly under the context of Sardex Mutual Credit System: an electronic B2B mutual credit system that has been operating on the island of Sardinia since 2009 as a complementary currency (Dini, 2016) Although mutual credit is not a “commons credit” it is view of how credit commons could be Revisiting an existing mutual credit system is a first step allowing us to understand Law around financial transactions and debt in its current state Mutual credit does not oppose or change Law it makes it more livable and functional Repositioning it in an impossible “networked” state where we are not sure of its transactions, support and motivation, governance, communities assemblage, utility, is an another effort that could help us move beyond the existing Law to a situation where a Law of Commons could emerge Thus, our objective is to move beyond mutual credit with expected, functional, solutions and venture with the monsters of commoning debt and credit As Dana Haraway explains regarding “the embeddedness in an infrastructure that makes the global appear as a work-‐object”, we can consider mutual credit contributing to such a dominant direction: the existing Law (infrastructure) is acceptable as mutual credit provides individually understood and accepted local solutions, alternative ways to apply and live with it Credit commons with its open design, its community oriented approach destabilizes this process and recasts debt in the unknown area of a global commons potential: this could be crucial as it would makes us forget the work-‐object understanding of debt and provide us with an opportunity further explore its commoning process Dini P, Motta W et Sartori L (2016) Self-‐Funded Social Impact Investment: An Interdisciplinary Analysis of the Sardex Mutual Credit System Presented in the 8th Social Innovation Research Conference, ISIRC 2016, Glasgow, 5-‐7 September 2016 Haraway D (2016) Staying with the Trouble Duke University Press, Durham NC, 2016 Ingham, G (2004) The Nature of Money Cambridge: Polity Contact: athanasios.priftis@hesge.ch Jose Luis Vivero Pol: Conceptualizing food as commons and public good: the conflicting epistemologies and normative views of a vital resource Food systems are the main drivers of Earth transformation Actually, the way we produce, eat and value food as a commodity is changing the planet in ways that threatened our very existence Nonetheless, food systems also play a double role as Nature’s steward Deciding which role we want food systems play will very much depend on the idea we have about food What is food for humans? a vital resource, a human right, a cultural pillar, a natural resource, a tradeable commodity, a commons? How we regard, value and approach an essential resource for our physical survival and societal development? The aim of this article is to provide conceptual clarifications on the applicability of “public good” and “commons” framings to food and how this framing shift would open up unexplored policy options for food system governance and transition pathways towards fairer and more sustainable food systems The historical account of opposing considerations of food as a commons/commodity or private/public good are discussed through normative, systematic and heuristics approaches Normative-‐wise, the consideration of different schools of thought on the commons (economic, political, legal, historical and activist) is presented with a particular focus on how those schools have considered food Secondly, two different methods are used to explore the diverse and evolving valuation of food as public issue and commons resource in different cultures, political regimes and human history, through (a) systematic academic literature research of key words with Google Scholar, and (b) a time-‐series visualization with Google Ngram Viewer of key words in written English texts already scanned by Google Books Those tools will enable us to understand the relative presence and relevance of the different normative views of food Different search terms related to “commons + food”, “commodity + food”, “public good + food” and “private good + food” will be used in this analysis Thirdly, a case study with members of 60 food buying groups in Belgium will be used to understand how they value the multiple dimensions of food as a public good and a commons, and how this narrative relates to the dominant discourses of food systems in transition Finally, the alternative narrative of food as a commons and a public good is detailed as an alternative political construct to enable food to fulfil the double role of life-‐enabler for humans and Nature’s steward in a sustainable and fair manner Graph of the multidimensional valuation of food as a public good VS the monodimensional valuation of food as a commodity Contact: jose-‐luis.viveropol@uclouvain.be ... ? ?the tragedy ? ?of ? ?the ? ?commons, we must deal with the problems of specific market arrangements The thesis of this paper is that the tragedy of the commons. .. reading of the Treaty, the research results are analyzed in light of the theory of the commons, with the aim to assess if and how the literature... system of seeds within the Treaty The thesis evaluates how the Treaty reaches its set objectives, using ? ?the theory ? ?of ? ?the ? ?commons ? ?The study is conducted at