Law: The Invisible Architecture of the Commons

by Saki Bailey, Shareable: https://www.shareable.net/blog/law-the-invisible-architecture-of-the-commons

In 2009, political economist Elinor Ostrom won the Nobel Prize in economics for her work demonstrating that "the commons" are not simply unregulated spaces of ruin, but instead places where the law operates invisibly, according to community norms and values in ways that lead to their sustainable use over many generations. What Ostrom's work revealed is that the "invisibility" of law and legal governance in the commons was the result of a bias in favor of private property as the optimal form of governance of scarce resources.

While Ostrom's work revealed that legal relations governing resources invisibly structure the commons, what those legal relations in fact reveal is our social and economic relations about resources: Who makes what? How much of what? And who gets what? 

In the commons, the answers to these questions are embedded in a social logic according to community norms and values. In market societies, the source of these answers are to be found in the non-social economic logic of capitalism. The catalyst for this non-social economic logic, according to social theorists like Karl Polanyi and others, was the separation of people from their means of subsistence through the enclosure of the commons: throwing people off their land, separating them from the basics of life — food, water, and shelter — and charging rent for access. In the feudal commons, access to the means of subsistence was guaranteed by one's inclusion and social status in a community and territory. In the transition to market economies, one's subsistence became a matter of one's ability to pay rent and/or labor for a wage. This new system 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 and commodification into every space and sphere of life. 

As Polanyi said: "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. 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. 

So, from this perspective, law is a tool for lawyers, judges, legislators, and most importantly citizens, to wield against the market, to combat the inequities that it produces in its unfettered wake-both top down and bottom up. And law can be utilized beyond property, welfare, and finance law to other domains. Law can be used towards decommodifying our means of subsistence by guaranteeing access to fundamental resources that are crucial to human life, both top down, by naming things like healthcare, education, and housing (just to name a few) as a right, to which access should be guaranteed, but also from the bottom up, by changing the structure of property and contract entitlements, for instance to allow for simultaneous use of shared resources, and curb unrestricted transfer rights. Law can also be used to reorganize work away from wage labor and towards workers' ownership, by enacting through legislation the recognition of new legal entities like the Cooperative Corporation or the B Corporation that place non-market values at their center, or bottom up through the creation of workers cooperatives (a rapidly growing movement throughout the world). Law can also be used to alter the structure of intellectual property rights in ways that encourage sharing, collaboration, and innovation, top down by policymakers refusing to create certain kinds of property rights in these resources, but also bottom up through legal innovation and resistance through individuals adopting the Creative Commons license or "copyleft" policy over other proprietary forms of copyright. 

In this new series on Shareable, "Law: The invisible architecture of the commons," we will showcase new and emerging legal institutions that offer an alternative system of incentives for encouraging cooperation, sharing, and sustainability. These legal institutions demonstrate how citizens, working together with lawyers and policymakers, can successfully design legal institutions for themselves to decommodify our access to fundamental resources, alter the wage labor relationship through new types of legal entities, and create new ways of stimulating ownership, innovation, and collaboration around knowledge goods.

Header image by Loren Gu via Unsplash

Young People are Leading a Growing Movement Against Low Pay and Precarious Work

Wil Chivers, Author provided

by Wil Chivers, Cardiff University; Helen Blakely, Cardiff University, and Steve Davies, Cardiff University

Strikes have taken place at McDonald’s and TGI Friday’s restaurants across the UK in recent months. These strikes are the first of their kind in the UK, instigated by a new generation of trade union members fighting for better pay and fairer working conditions.

At the Wales Institute of Social and Economic Research, Data and Methods (WISERD for short), we’ve been following these strikes on social media and at the picket lines, to discover what’s driving this fledgling movement, and how it differs to those that went before.

Most young people in the workforce have experience with low pay and zero hours contracts. At TGI Friday’s, table staff were told earlier this year, with two days’ notice, that 40% of their tips from card gratuities would be taken and redistributed among kitchen staff, as part of the move towards a central pool of tips called a “tronc”. We heard from workers in London that this amounts to wage losses of around £60 a week – or £3,000 a year.

McDonald’s has also drawn criticism previously, for its use of zero hours contracts. Last year the company reported it would offer 115,000 of its workers employed in this way the chance to switch to minimum hours contracts – though 80% of those asked chose to remain on flexible contracts. 

Nevertheless, critics have attacked these arrangements as exploitative, and workers have responded with sustained collective action to fight for better wages and more secure employment around the world – most notably with the Fight for $15 in the US.

Building a movement

Although staff at both chains vary in age, it is the younger generations who are represented the most on the picket lines. This may just be a product of the low average age of service sector employees. But it may also signal that young people are becoming more inclined to organise and campaign for their rights.

Trade unions are capitalising on the appetite among this generation of workers for change – as well as the potential for young, savvy social media users to extend the reach of their campaigns. McStrike is organised by the Bakers’ Union (BFAWU) while the TGI strike has the support of Unite. This is a strategic decision: both unions offer each other mutual support – and together they hope to build a broader movement across the service sector.

McDonald’s workers from five restaurants gather at a demonstration in Watford on May 1. Wil Chivers

Far from the stereotype of the apathetic youth, the young workers involved on the picket lines are passionate and well informed. They are tuned into party politics, appreciate the wider labour movement they are becoming a part of and give confident speeches to the public to that effect. There is a clear ethos of collective action: as Shen Batmaz – former McStriker, now BFAWU organiser – told us: “This has been about working together, helping each other, to make things better.”

We’ve also witnessed a carefully crafted continuity between the two strikes. McStrikers stand side-by-side with TGI employees on the picket line. Solidarity is forthcoming from other quarters, too. BECTU members from Picturehouse cinemas and workers from the Intercontinental Hotels Group have both been fighting for the London living wage, and both had representatives at the TGI strike. All are determined to build on the momentum that is emerging.

A new frontier

Digital tools including social media are often heralded as the key to revitalising trade unions. Inevitably, young people have also been getting involved with trade unions and protests online. We collected 90,000 tweets during the first McStrike, and witnessed how McStrikers’ images and stories were used to personalise the strike and generate support from the wider public. Protesters’ tweets were retweeted thousands of times, creating an online network that spread far beyond those directly involved.

A retweet network in the week preceding the first McStrike. Politicians and news media were vital for spreading the message. Wil Chivers/WISERD

This online presence has continued to accompany the strikes, spreading the message that this is not just a McDonald’s or TGI’s issue, it applies to anyone – young or old – working for low pay on precarious contracts. So far, these strikes have maintained their own online identities: “#McStrike” (adopted from a New Zealand-based campaign) and “#AllEyesOnTGIs” are instantly catchy, while “#FightFor15” has gained international recognition.

There is already a strong sense that these strikes, and the movement they are building, can be successful. After the first McStrike in September last year, McDonald’s recommended pay increases for its 115,000 staff, across all ages. But whether these will be passed on to staff in franchises is yet to be seen, as franchises set their own pay rates. Although these strikes are small scale for now, they show that young workers on precarious contracts are not impossible to organise.

It began in the US with Fight for $15, but the determined cooperation between unions representing workers in similar positions has brought that fight to the UK. Online and offline, workers and trade unions are developing a model that can be replicated and expanded across different industries and in different countries. And while it’s important to celebrate the small victories, the lasting success of these campaigns may be the fact that a new generation of young people are joining unions and throwing themselves into campaigning for their rights.

Wil Chivers, WISERD Social Media Research Associate, Cardiff University; Helen Blakely, WISERD Research Associate, Cardiff University, and Steve Davies, WISERD Research Associate, Cardiff University

This article was originally published on The Conversation. Read the original article.