Law, the Commons, and the Harm of Instrumental Relationships
The Real Architecture of the Commons is Gifting Culture, Not Law
I am a huge fan of “the commons” philosophy and acknowledge the negative consequences that have occurred over the centuries and millenium as we have moved from societies based on “the commons” (things held in common and accessible to all people such as air, land, and resources) to a society of market economies based on private ownership and exchange. But I have major problems with some of the conclusions in this article in favor of the commons entitled: Law: The Invisible Architecture of the Commons.
In a Facebook post I shared a quote by Daniel Schmachtenberger from a Future Thinkers podcast about the harmful effects of “Instrumental Relations”, which have become the norm in our monetary exchange-based society. In a nutshell, our relationships with each other and with our environment in a monetary market economy are incentivised to be based upon reciprocal exchange and what we expect to gain out of those relationships, rather than on the relationship’s own intrinsic value. So accordingly we have lost much of our meaningfulness in those relationships and have become separated from other people and nature. This article which I am referencing speaks to what we have lost in our society for this very same reason — the market’s ever increasing encroachment on more and more things in life that were once part of our commons, or what we can call gifting society, and a shift more and more towards corporate privatization and individual ownership, which then necessitated reciprocal exchange.
This passage from the article sums it up nicely, “This new system [market economies] unleashed a logic of competition for productive land and work, the accumulation of capital to reinvest into labor and time saving technologies, and the expansion of instrumental relations [emphasis added] and commodification into every space and sphere of life…Instead of economy being embedded in social relations, social relations are embedded in the economic system…Or to put it simply, instead of profit serving the needs of people, people came to serve the needs of profit”.
Well said. But my disagreement emerges with this statement, which seems to suggest that we just need the right laws and everything will be okay, “Polanyi’s optimistic outlook was that through property, welfare and finance regulation — through law — the market could be embedded once again to serve human and social purposes.”
The notion that “law” can help an inherently flawed market exchange system based on competitive “instrumental relations” serve social purposes is a lot like closing the barn door after the horse has bolted. No, scratch that. It’s more like the foxes guarding the hen house (the foxes being the lawyers and politicians). My view of law is that it is a social construct that mainly props up our market and private property systems. Laws mainly protect the property rights of those with property, mainly the rich, and not the rights of the common man. As the historian Howard Zinn wrote, “The U.S. Constitution…deleted four groups and their interests: those bound by slavery, indentured servants, women, and those who did not own property…By 1787, there was a felt need for a strong central government to protect the property rights of the wealthy and to discourage and control rebellion.” Do you think the property rights of the wealthy are still being protected today? The richest 1% own half the world’s wealth. And why are we not rebelling? Are we too comfortable within the nice “protest zones” our governments politely set aside for us, like the new protest rules the city of Pittsburg just announced?
Most laws are patchwork fixes of our poorly designed societal system. In other words, if we created a system to benefit all, we wouldn’t need all the laws, which are more about controlling us then increasing our freedoms. By far, most crimes, 80% or more, have to do with property and money, whether white-collar crimes or otherwise. And much of what I would call “legal crimes” are carried out by corporations everyday, through their manipulative marketing and advertising to convince us that we suck unless we buy their products, many of which are harmful and degenerative towards our environment and people. Or by offshoring their operations to avoid paying their fair share of taxes. Yet all of this is considered totally legal.
But that is why we have corporate lawyers, right? Corporate lawyers, according to not only the anthropologist David Graeber in his book Bullshit Jobs but also to some corporate lawyers themselves, see their jobs as “utterly meaningless, contribute nothing to the world, and should not really exist.”. Some jobs go beyond mere bullshit, and are actually harmful. So this begs the question, if the profession of “lawyer” is bullshit, then is our entire system of law itself bullshit? Maybe we don’t need to throw the bull out with the bathwater and dismantle our entire justice system, but certainly much of it is indeed bullshit.
Here’s another concerning sentence from the article, “…law is a tool for lawyers, judges, legislators, and most importantly citizens, to wield [emphasis added] against the market, to combat [emphasis added] the inequities that it produces in its unfettered wake…”
This sentence is quite problematic on several levels. First, it suggests we need a professional class to handle all the stuff that we little people can’t understand. Which is actually true, as it is today. The perverse incentive is this: the more confusing the law is to laypeople, the more billable hours for attorneys. The more obtuse a bill in congress, the more job security for our politicians, a large percentage of of whom are lawyers. And to the point of it being a tool for citizens, law is hardly a tool for average citizens unless they can muster enough money to make it so. We all know the legal system favors the rich.
Secondly, the sentence above from the article, or more precisely my added emphasis, highlights the inherently flawed, antagonistic relationship built into our entire socio-economic system, which the law struggles in vain to correct. Any system that we have to combat can’t possibly work in our favor. Even the words “combat” and “weild” suggest a power struggle that is at the heart of the win/lose, rivalrous game we call the market economy. In such a system, based upon the language and mechanisms of struggle and battles and war, do you ever think we can ever achieve a win/win society that benefits everyone? To put this into systems language, we have an entire socio-economic system (including our legal system) that is rivalrous and antogonistic. And this article is pointing to that inherent flaw by showing how the law must be pitted against markets and capitalism in a never ending duel. I would go so far as to say that the market is actually antithetical to the commons, and no amount of good law will ever right that wrong. We will never have a society based upon the commonwealth of all people and life on this planet (win/win) as long as we operate from within a system based on rivalry and competition (win/lose).
The third concern with the above sentence is this, it sublty assumes there is no other option…that we will always have market economies…that we will always have money and capitalism. And perhaps the most insideous assumption hinted at in the author’s sentence is this…that we will always have inequality and thus a “welfare” class. It assumes we are stuck with this system called “the market” and all the problems it creates in its “unfettered wake”. The reality that we experience now as “just the way it’s always been” is but a tiny slice of our human history. Given that Homo Sapiens have been around for 200,000 years, and market economies have been around for 5,000 years (10,000 tops), this means that for over 95% of our existence we had no market economies or even barter economies. (The notion that there were barter economies is a myth). We had gift economies…the original and purest form of the commons.
Finally I take issue with this sentence, which is not keeping up with the post-jobs, post-scarcity era that we are entering into: “Law can also be used to reorganize work away from wage labor and towards workers’ ownership…through the creation of workers cooperatives (a rapidly growing movement throughout the world).”
With automation and robotics, combined with increased resource utliziation from the non-ownership of stuff, we are quite capable of providing for everyone without the traditional notion of “work” and “jobs”. Yes, worker’s rights and worker’s cooperatives are good things in our current jobs-based economy, in order to protect workers from exploitation. But in a post-labor-for-income era, it will be a non-issue whether workers own the means of production and the goods, because it will all be part of the commons.
Commonifying
So in order to de-commodify or reverse the “commodification into every space and sphere of life” that has happened under our market economy, I have proposed in another essay how instead we can “commonify” and literally shift From Dystopia to a Utopian Reality… as Soon as Now. In that essay I discuss the notion of “The Social Network”. You know which one I mean. It is entirely built upon our own social capital. One could argue that it should be considered a commons, and that therefore we could rightfully take back that which is the commonwealth of all citizens. Rather than tear it town, perhaps we just take back what is inherently ours to begin with.
But then we ultimately come back to the limiting notion of “the law” regarding the limiting notion of “property”. Can we ever have a true commons while the current laws support and prop up the antiquated ideas of “the market” and private property, which increasingly includes intellectual property? The only “law” that should be “the invisible architecture of the commons” should be one based on common sense and the golden rule of “Do unto others as you would have them do unto you”. Violaters will be asked to take their property rights — a fictional human construct (see diagram below) — and leave until they can play nicely with us in our commonwealth playground.
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“Two lawyers who have never met can nevertheless combine efforts to defend a complete stranger because they both believe in the existence of laws, justice, human rights — and the money paid out in fees. Yet none of these things exists outside the stories that people invent and tell one another.” ~ Yuval Noah Harari, Sapiens: A Brief History of Humankind
