When laws no longer protect society's rights, it's time to establish the "common law" rights of the people.
By David Bollier and Burns H. Weston
Part of the Green Governance series
Is it possible to solve our many environmental problems through ingenious interventions by government and markets alone? Not likely. Apart from calls for eco-minded behavior (recycle your cans, insulate your house), ordinary citizens have been more or less exiled from environmental policymaking.
The big oil, coal and nuclear power companies have easy access to the President and Congress and expert lawyers and scientists have privileged seats at the table. But opponents of, say, the Keystone Pipeline are mostly ignored unless they get arrested for protesting outside of the White House.
A New Kind of Law to Underpin the Commons
That’s why we believe it’s important to talk about a “new” category of law that has little recognition among legislators and regulators, judges and lobbyists. We call it “Vernacular Law.” “Vernacular” is a term that the dissident sociologist Ivan Illich used to describe the informal, everyday spaces in people’s lives where they negotiate their own rules and devise their own norms and practices.
In our last essay, we introduced the idea of commons- and rights-based governance for natural ecosystems. We turn now to Vernacular Law because its matrix of socially negotiated values, principles and rules are what make a commons work.
Vernacular Law originates in the informal, unofficial zones of society – the cafes and barber shops, Main Street and schools, our parks and social networking websites. What emerges in these zones is a shared wisdom and a source of moral legitimacy and authority. Colonial powers frequently used their formal law to forcibly repress the use of local languages so that their controlling mother tongue could prevail.
Formal Law and the Will of the People
The truth is that States often find Vernacular Law threatening. But on the other hand, what government can possibly govern without the consent of it, also known as “the street?”
There is an implicit struggle in any modern state between State Law and Vernacular Law. Wise political leaders learn that it is best to acknowledge the relationship between the two, and to provide channels for Vernacular Law to flourish and influence State Law.
Vernacular Law is important because it can act as a corrective to formal, organized legal systems. When these formal systems “yield discrepancies between what people want and what they can expect to achieve, macrolegal changes may not be effective,” says Yale law scholar Michael Reisman. “Microlegal adjustments may be the necessary instrument of change.”
A government cannot govern without the “hearts and minds” of the people.
Reisman notes, that “in everyone’s life, microlaw has not only not been superseded by state law, but remains . . . the most important and continuous normative experience.” The social protocols that people develop in a given societal setting constitute an undeniable form of law. In some respects, they are far more powerful than anything enacted by Congress or enforced by courts.
Trent Schroyer, a student of Ivan Illich’s, describes the “vernacular domain” as a “sensibility and rootedness . . . in which local life has been conducted throughout most of history and even today in a significant proportion of subsistence- and communitarian-oriented communities.” Vernacular domains are those “places and spaces where people are struggling to achieve regeneration and social restoration against the forces of economic globalization.”
Examples of Vernacular Law
Consider three relatively conspicuous examples of Vernacular Law: the canons of the church, the rules of the sporting field and the codes of social etiquette. At the other extreme, Reisman includes “looking, staring and glaring,” “standing in line and cutting in,” and “rapping and talking to the boss.”
Somewhere in between there exists a seemingly inexhaustible number and variety of Vernacular Law systems, each with its own protocols for what is acceptable and unacceptable, what constitutes a sanction, and other rules for negotiating relationships.
Vernacular Law can be seen in the management of indigenous communities, peasant collectives, farmers’ markets, businesses and factories, inter-business dealings (e.g., “gentlemen’s agreements”), specialized trades (e.g., magicians’ secrets, bakers’ recipes), and countless other circumstances.
The Internet and Vernacular Law
Perhaps the most salient arena for Vernacular Law today is the Internet, a great hosting infrastructure for countless digital commons. As the Internet has exploded in scope and become a pervasive cultural force around the world, so Vernacular Law – self-organized, self-policing community governance – has become a default system of law in many virtual spaces (notwithstanding the lurking presence of State Law or corporate-crafted law that may enframe these commons).
For millions of “digital natives” using the Internet, Vernacular Law is the most natural, familiar, mode of governance imaginable. It is the “real world” institutions – Congress, the courts, large corporations – that are bizarrely complicated, unresponsive, archaic and/or corrupt.
We need to recognize and validate Vernacular Law so that it can begin to make formal, official law more responsive and protective of our natural ecosystems. In a time when State Law has become captive of large industries and market interests, Vernacular Law serves a vital function as an evolving, communicative life pulse.
Custom to Counter Corporate Capture
The people’s deep will is often expressed eloquently and durably through their customs. Yale property law professor Carol Rose has noted that custom is “a medium through which a seemingly ‘unorganized’ public may organize itself and act, and in a sense even ‘speak’ with the force of law...” Internet communities often have their own “netiquette” and FAQs to express their customs and ethos. The Magna Carta is so renowned because it put down in writing for the first time the many customary practices that people had, and elevated them into rights.
“Over time,” Professor Rose writes, “communities may develop strong emotional attachments to particular places and staging particular events in those places... ”
Medieval courts were known to elevate custom over other claims, as when they upheld the right of commoners to stage maypole dance celebrations on the medieval manor grounds even after they had been expelled from tenancy.
Courts have been uneasy with the idea of informal communities as a source of law because they are not formally organized or sanctioned by the State, and courts themselves are generally creatures of the State. As one court put it, claims of traditional rights are “forms of community unknown in this state.” But as Rose notes, this is precisely why customary law is such a compelling and authoritative substitute for government-made law; it reflects the people’s will in direct, unmediated ways.
Vernacular Law as Antidote to Dysfunction
It is especially important to recognize Vernacular Law today—a time when the State has become captured and corrupted. The State and Market have become so intertwined and collusive that they often fail to carry out their own legal obligations to citizens and the environment.
The best antidote lies in Vernacular Law and the moral authority and legitimacy that it provides, particularly when it is faithful to the fundamental principles of international human rights. We make this extended case for Vernacular Law because it lies at the heart of the commons, and commons-based forms of governance hold out great hope for improving our society’s stewardship of natural systems. They provide a means by which an otherwise unorganized public can express itself and order its affairs, and even do so authoritatively.
What remains is for State Law to recognize the value of Vernacular Law as a tool to renew and rehabilitate itself.
This essay is adapted from Green Governance: Ecological Survival, Human Rights, and the Law of the Commons, by Burns H. Weston and David Bollier Copyright © 2013 Burns H. Weston and David Bollier. Reprinted with the permission of Cambridge University Press.