Hidden like treasure in the depths of our legal system is the foundation of a law of the commons. American law tends to privilege corporate rights and private property to the exclusion of community, other creatures, health, and future generations. Nevertheless, some legal precepts derived from ancient practices of people sharing water, land and wildlife still reverberate through American law.
One of the oldest ideas, the public trust doctrine, predates the Magna Carta but it is part of the common law in most of the 50 U.S. states. The public trust doctrine stands for the principle that a government body holds some resource like tidal waters or shores in trust for the people. Versions of this concept have appeared in state constitutions and been adjudicated in state and federal courts.
Other ideas have emerged in response to changing technology and the increasing scarcity of various resources. Beginning in the 1970’s a spate of states amended their constitutions to grant new rights and assign new duties reflecting the increasing burden of pollution and damage to the commons. Florida crafted a polluter pay provision to force agriculture to clean up Lake Okeechobee. Similarly, the Law of the Sea convention of 1982, an international treaty, asserted the right of all humankind to access the deep seas because fishing and mining technology increased the likelihood of a single nation plundering the oceans.
One of the most interesting ideas to take hold in the 1970’s was the brainchild of an Alaska governor, Jay Hammond. He helped create the Alaska Permanent Fund to reap the benefits for all Alaskans of oil drilling on state lands. Some money from the oil profits goes into the state coffers to pay for public infrastructure and a portion of the fund is paid out to each Alaskan as a dividend
I have taken these (and other ideas) and distilled 10 tenets of commons law on which we might build a more satisfying, coherent law and policy so that we can pass this beautiful world on to future generations.
Ten Tenets: the Law of the Commons of the Natural World
- The commons shall be passed on to future generations unimpaired. E.g., Montana Constitution: Article ix: environment and natural resources National Park Service Organic Act, 16 U.S.C.1.
- All commoners have equal access to the commons and use by commoners will be allocated without discrimination. E.g., Alaska Permanent Fund.
- Government’s key responsibility is to serve as a trustee of the commons. E.g., Lake Michigan Federation v. Army Corps of Engineers, 742 F. 2d 441 (N.D. Ill. 1990), Source: Public trust doctrine.
- The commons do not belong to the state but belong to commoners, the public. E.g., Public Trust Doctrine.
- Some commons are the common heritage of all humans and other living beings. Common heritage establishes the right of commoners to those places and goods in perpetuity. This right may not be alienated. The Common Heritage law is a limit on one government’s sovereignty to claim economic jurisdiction and exclude some commoners from their share. E.g., the 1982 Law of the Sea Convention, article 136 and 137.
- The precautionary principle is the most useful tool for protecting the commons for this and future generations. E.g., San Francisco precautionary principle ordinance.
- Eminent domain is the legal process for moving private property into the commons and shall be used exclusively for that purpose. Source: Fifth Amendment of the U.S. Constitution.
- Infrastructure necessary for humans and other beings to be fully biological and social creatures will reside within the domain of the commons. The positive benefits (externalities) of the commons shall accrue to all commoners. E.g., Alaska Permanent Fund.
- Because the commons are the foundation of the economy, commerce and private property shall not externalize damage or costs onto the commons. E.g., Florida Polluter Pay Constitutional Provision.
- Damage to or loss of the commons shall be compensated to all commoners. E.g., Alaska Permanent Fund.