The Importance of Vernacular Law in Solving Ecological Problems

This is the second of a series of six essays by Professor Burns Weston and me, derived from our book Green Governance:  Ecological Survival, Human Rights and the Law of the Commons, published by Cambridge University Press in January 2013.  The essays originally appeared on CSRWire.

 

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 green-pin-cushionits 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.

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Green Governance: Reimagining Our Stewardship of Nature

Professor Burns Weston and I recently published a series of six essays on CSRWire (CSR = “Corporate Social Responsibility”) that were derived from our book Green Governance:  Ecological Survival, Human Rights and the Law of the Commons, published by Cambridge University Press in January 2013.  

The book – an outgrowth of the Commons Law Project -- is a direct response to the mounting calls for a paradigm shift in the way humans relate to the natural environment. Green Governance opens the door to a new set of solutions by proposing new types of environmental protection based on broader notions of economics and human rights and on commons-based governance. At the heart of the book is a new architecture of environmental law and public policy that is theoretically innovative, but also quite practical.

The paperback edition was recently released, making it available to a much larger readership.  To introduce the book to people who may have missed it the first time around, I am posting the original six CSRWire essays by Burns and me over the course of the next week.  I hope you enjoy them!  -- David

 

At least since Rachel Carson’s Silent Spring, we have known about humankind’s squandering of nonrenewable resources, its careless disregard of precious life species, and its overall contamination and degradation of delicate ecosystems. Simply put, the State and Market, in pursuit of commercial development and profit, have failed to internalize the environmental and social costs of their pursuits. They have neglected to take measures to preserve or reproduce the preconditions of capitalist production – a crisis now symbolized by the deterioration of the planet’s atmosphere.

Despite the scope of the challenges facing us, there are credible pathways forward. In our recent book, Green Governance: Ecological Survival, Human Rights and the Law of the Commons, we propose a new template of effective and just environmental protection based on the new/old paradigm of the commons and an enlarged understanding of human rights. We call it “green governance.” It is based on a reconceptualization of the human right to a clean and healthy environment and the modern rediscovery of the age-old paradigm of the commons.

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Group Decision Tip: What’s the problem?

In principle, more often than not, a group will develop a great solution to the wrong problem. Before proceeding with a solution we need to see that it is aimed at the problem, and to do that we need to bring the problem into focus. Taking time to define the problem may seem annoying and unnecessary in the short term, but can save huge amounts of time and energy over the long run.

Group Decision Tips IconDefining the problem as a group also checks our shared expectations. It helps me decide, “Is this something that I want to participate in?”

Practical Tip: Before discussing solutions, discuss the problem. What are we trying to fix? What is the specific scope of the problem that we are willing to take on? How would we know if the problem were fixed? Are we the right group to fix it?

On paper, write something like, “The problem is that _____________.” It could be a sentence or it could be a paragraph.

Refrain from discussing solutions until you have agreement on the problem statement. Make sure that all those working on the problem are aware of the written problem statement and agree with it.

Before firing off solutions, make sure the problem is squarely in your sights.

a little play for Lorca

José: We just killed Federico García Lorca!

Juan: We left him in a ditch and I fired two bullets into his arse for being a queer.”*

Amando: You killed Lorca? You and the corporal here?

José (nodding): I was there. I would have shot him, too, if the captain hadn’t already wasted two bullets.

Amando pulls a revolver from his coat and rests the grip on the table, pointing the muzzle between the two men.

Amando: You murdered him because you hated him?

Juan: We executed him to cleanse the nation.

Amando: If there was justice, I would march you to the police station to be tried for murder.

Juan: There is justice. It was done.

Amando: It is my duty to try you, and to punish you, because this is the only room where that can possibly happen now. You confess that you murdered Lorca?

José [rising]: I will go into the village and find soldiers. This man is crazy.

Amando shoots José in the chest and points the revolver directly at Juan.

Amando: Your end will the the same as his, but I will give you time to think about it first. He escaped fear and regret; you will not. We will wait.

A long time passes. The old clock ticks. Some hay blows in under the door.

Amando: You should pray.

Juan: Autumn will come with snails,
misted grapes and bunches of hills
but no one will watch your eyes
because you have died forever.

Amando: What! How do you know those words?

Juan: They were Lorca’s last. He said them in the ditch. They made an impression on me.

Amando: You believe that I cannot shoot you now, because you said those lines?

Juan: You cannot.

Amando: If I let you go, you will be boasting and laughing by midnight.

Juan: You cannot shoot me now.

*Real words, quoted by Jeremy Edelman, The New York Review, June 5, 2014

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PBP Co-Hosts Event at the White House

We want to congratulate the Participatory Budgeting Project (an NCDD organizational member) on the advancement of their work with the White House to spread participatory budgeting in the US. PBP was officially included in the White House’s Open Government Action Plan, and they recently blogged about the day-long meeting they just had as part of their participation in the initiative.


PBP-logoOn Tuesday, May 13th, The White House and the Participatory Budgeting Project co-hosted a day-long meeting on participatory budgeting, as part of the White House’s efforts to advance PB. “Promoting Innovation in Civic Engagement: Exploring Community‐Led Participatory Budgeting in the United States” brought together over 60 city leaders, community organizers, residents, funders, researchers and technologists to share best practices and identify next steps for expanding and deepening PB.

Invited experts, including PBP Executive Director Josh Lerner and Associates Gianpaolo Baiocchi and Madeleine Pape, spoke about the latest developments in PB and about research efforts to measure PB’s impact. Our partner organizations Community Voices Heard and the Community Development Project shared their experiences from PBNYC, and we discussed key engagement, implementation, and research strategies in small break-out groups with dozens of partners from across the country, as well as representatives from the White House and federal agencies.

“Five years ago participatory budgeting was an obscure idea in the US,” concluded Josh Lerner. “Now, as the White House has recognized, it’s a best practice for civic engagement, used by over 40 cities, districts, universities, schools, and other institutions across the country.” Thank you to everyone who has contributed to this rapid transformation!

You can find the original version of the above post at www.participatorybudgeting.org/blog/the-white-house-pbp-host-national-convening.

how do we perceive an identity?

(Providence, RI) What makes us think that certain features of objects are integral or essential while others are optional? For instance, a banana could be straight and still a banana, but a wheel must be round to be a wheel. You could change the material of a wheel without changing its status, but you cannot make a (real) banana out of something other than a certain kind of fruity flesh.

This is a psychological point and not a logical or metaphysical one. People will differ in what they consider definitive about a banana, and many (or even all) of us could be wrong. But we tend to think of some aspects of objects as central and essential, and others as optional. We can develop models that mimic–and help elucidate–how people make those distinctions.

These models interest me not so much when applied to everyday objects like bananas and wheels, but when turned toward matters relevant to human values. For instance, what makes us assign a person to a “culture”? (Cultures have many features, and they always encompass much internal diversity, yet we confidently declare that individuals represent particular cultures.) Likewise, when do we assign a person to a moral category, such as “liberal” or “religious”?

Sloman, Love, and Ahn* ask subjects various questions about what features of an ordinary object, such as an apple, are integral to it. For instance, surprise: How surprised would you be to find an apple that had no skin, that did not grow on a tree, or that was blue? Salience: How prominent in your conception of an apple is that it is edible, or red, or round? Inference: If you knew that something grew on trees, would you guess that it was edible, round, or red?

The authors develop a statistical model that can predict which features of an object are seen as most integral. The model turns out to depend on the survey questions about mutability. We define an object by the kinds of features we think can’t be changed. These features compose its identity, as we perceive it. (Again, this is a psychological finding and not a logical or metaphysical one.)

The authors then argue that what makes a feature seem immutable is the degree to which other features seem to depend on it. That leads to a second experiment in which the features of an object are scattered on a piece of paper and subjects are asked to draw lines between the features that they consider dependent on each otherScreen Shot 2014-06-04 at 6.45.20 PM. For example, this graph shows an arrow between two features of an apple: “sweet” and “you eat it.” Apparently, we eat apples because they are sweet. Overall, the graph reveals two connected subnetworks, one concerned with apples as food and the other with the apple’s reproductive history (p. 223).

Of course, the image above is not a representation of an apple. It does not depict or convey the juicy crunch of the real fruit. Nor would it define an apple as objectively as, say, a DNA sequence. It doesn’t provide necessary and sufficient conditions for being an apple. It is rather a representation of the everyday mental model that subjects use in classifying objects as apples.

Now consider what happens when we introspect and assign ourselves to normative categories. Even if I limit my introspection to ethical matters, I observe many features of my own thought: principles, methods, aversions, enthusiasms, commitments, loyalties, open questions. Some of these I consider quite optional and superficial. If I changed those opinions, I wouldn’t believe that I had changed. Others seem more fundamental, so that I doubt that I could change them at all, and if I did, I would be someone new.

The model from Sloman, Love, and Ahn suggests a way of distinguishing between superficial and fundamental commitments. The fundamental ideas have many dependent ideas, so that if they change, it starts a whole chain of other changes.

Of course, people can differ in the degree to which their worldviews depend on just a few ideas, and therefore how much change any shift will cause. Some people organize their moral thought systematically, so that it all depends on a few premises (or even one sumum bonum). Others are not able to systematize in that way, or object to doing so. John Keats, for example, defined “Negative Capability” as the capacity not to organize one’s thought so that it was dependent on any particular ideas. He attributed that capacity to Shakespeare and also to himself, writing, “it is a very fact that not one word I ever utter can be taken for granted as an opinion growing out of my identical nature [i.e., my identity].” He implied that he could change any given idea without much effect on the whole of his thought, whereas people like Coleridge built their whole mentalities on narrow foundations.

The model from Sloman et al. suggests this is difference is a matter of degree. Probably all of us fall on the spectrum somewhere between Keats and, say, Jeremy Bentham. The network model is flexible enough to depict anyone.

*Steven Sloman, Bradley C. Love, and Woo-Kyoung Ahn, “Feature Centrality and Conceptual Coherence,” Cognitive Science, vol. 22, no. 2 (1998), pp. 189-223.

See also: “the politics of negative capability“; “toward a theory of moral learning“; and “a different take on coherence in ethics.”

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Eben Moglen: “Snowden and the Future”

The ongoing Snowden revelations about NSA surveillance have all sorts of implications for the rule of law, constitutional democracy, geopolitical alignments, human rights and much else.  The disclosures deserve our closest attention for these reasons alone.  But what do these revelations have to do with the commons?

If we regard the act of commoning as a genre of citizenship – acts of voluntary association and action that are critical to human freedom and democracy – we can see that snooping by both the NSA and its corporate brethren are profoundly hostile to the future of the commons.  They violate some fundamental notions of human rights, civil freedoms and the ability of individuals to protect their privacy and thus their sovereignty.

If the market/state apparatus can digitally monitor our reading habits and telephone calls, email correspondence and purchases, physical movements and much else, then it has effectively snuffed out the sovereignty of a free people. The barrage of the successive Snowden disclosures has been followed by a relentless government propaganda war, cable TV denunciations and even attacks on Greenwald by the liberal nomenklatura (Michael Kinsley, George Packer). It’s as if "respectable opinion" did not care to note or defend the elemental human freedoms that a functioning democracy requires.

It was such a pleasure therefore to (belatedly) encounter a series of four lectures delivered last fall by Eben Moglen, a law scholar and historian at Columbia Law School, founder of the Software Freedom Law Center, and former general counsel of the Free Software Foundation.  The four talks -- "Snowden and the Future" -- offer one of the most eloquent and historically informed critiques of the Snowden revelations and their implications for freedom, democracy and – I would add – the capacity of people to common.

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Frontiers of Democracy conference is taking shape

(Washington, DC) This year’s “Frontiers of Democracy” conference will take place on July 16-18, 2014 in Boston, MA. Although the agenda is not completely final, it is now quite detailed, involving about 18 plenary or concurrent sessions–all highly interactive.

In addition to these discussion sessions, there will be some provocative short talks. Signed up to give those are: Ambassador Alan Solomont, the dean of Tisch College; Gloria Rubio-Cortes, president, National Civic League; Josh Lerner, Participatory Budgeting Project; John Gastil, Penn State (communication); Tina Nabatchi, Syracuse University (public administration); Shelby Brown, Executive Administrator, State of Connecticut’s Office of Governmental Accountability; Tim Eatman, Research Director, Imagining America; Sabeel Rahman, Harvard (government and law).

Register here to hold your place.

Frontiers of Democracy is sponsored by Tisch College of Citizenship and Public Service at Tufts University, the Democracy Imperative, and the Deliberative Democracy Consortium.

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KF Interviews Imagining America Codirector

We recently read a fascinating interview with Imagining America codirector Timothy Eatman that our organizational partners at the Kettering Foundation published that we want NCDD members to see. IA’s work in bridging academia and public engagement is critical to advancing our field, so we encourage you to read Timothy’s thoughts on how we get there below. You can find the original interview here.

kfIn a recent column in the New York Times, Nicholas Kristof laments that scholars are too often unimportant and “irrelevant,” producing “gobbledygook . . . hidden in obscure journals.” Kristof goes on to say that “over all, there are, I think, fewer public intellectuals on American university campuses today than a generation ago.” Whether real or perceived, the sentiment that scholars are disengaged is shared by many.

However, on a number of fronts, higher education is enjoying a renewed commitment by scholars to community-centered research and teaching. The Kettering Foundation and many others have referred to this as “public scholarship.” The term “public scholarship” may strike you as a little funny: we don’t typically think of scholarship as public or even publicly accessible. So what’s this all about?

Imagining America: Artists and Scholars in Public Life (IA), a national consortium of publicly engaged scholars headquartered at Syracuse University, has for many years drawn attention to these challenges. The program was launched in 1999 at the White House. The founding partners were the University of Michigan, the Woodrow Wilson National Fellowship Foundation, and the White House Millennium Council, led by Hillary Clinton. Today, IA has more than 100 member institutions.

Imagining America LogoTimothy Eatman serves as codirector of IA and holds a faculty appointment at Syracuse University’s School of Education in the department of Higher Education. He also serves as an affiliate faculty member in the Communications and Rhetorical Studies Department. Jack Becker recently sat down with him for a couple of discussions before and after the 2013 Imagining America National Conference, which brought together several hundred participants from across the country and around the world to ask the powerful question, “How do we catalyze artists, designers, and humanists, and tap the power that their fields represent, to open us up to innovative, 21st century ways of demonstrating the relevance of the academy and of impacting our pipeline of young adults?”

Jack Becker: What kind of space does the Imagining America annual conference open up for thinking about democratic engagement?

Tim Eatman: It’s the space being used for over a dozen years to affirm this work. It helps connect graduate students and scholars to a conversation around civic engagement that they might not be able to have at their university or at their disciplinary conference.

We need a space to just be able to air some of these issues, particularly in the academy. Particularly in Research-One institutions. This is a traditional space. We think we are stimulating and catalyzing a community that sees room for scholarly research to thrive, but also feels that in the 21st century we can have a larger continuum of knowledge creation. This supports the idea of academic freedom and agency.

Part of the challenge is encouraging faculty to think of their pedagogy differently, in ways that harness the knowledge and thinking of students as colearners and colleagues; this orientation changes the dynamic of the classroom. We’re pushing for that as well. What does it look like when we position students as colearners? A lot gets left on the floor in terms of possibilities when we don’t engage students more deeply.

Promoting “publicly engaged scholarship” is one of Imagining America’s core activities. What is publicly engaged scholarship, and is it in tension with conventional forms of scholarship?

Publicly engaged scholarship has an emphasis on the reciprocal dynamic of knowledge making. An orientation of the campus that values the knowledge-making capabilities of the community; a posture that values community-located knowledge in ways that we don’t tend to do much of in the Ivory Tower. It also includes larger efforts to transform the culture of higher education.

So, the key question is, what is the impact our scholarship has on our community? It’s good to have ways to champion each other (faculty and scholarship), but what is the impact?

There has to be space for scholars who want to be engaged in clinical esoteric research and advance knowledge, and there has to be space for those that want to work with teachers, not as, to channel Harry Boyte here, not as experts on top but as experts on tap. When I go into a teacher’s classroom, I can’t tell them anything much about that environment; they know that environment. So it’s a different posture when you go into an environment and say, “you know what, I have some things to learn, I have some things to teach, yes, but how can we think together about what the consequence of our work is and can be?”

The challenge from a policy standpoint is, faculty are going to do some of that anyway, but not in a way they could if that work were valued in the rewards system. On that note, the Tenure Team Initiative has been an important program of IA that focuses on improving the rewards system in academe for faculty who practice engaged scholarship in the cultural disciplines and seeks to develop a broad understanding of the university’s public mission and its impact on changing scholarly and creative practices.

Issues of faculty rewards are among the most traditionally treated issues in the academy. Trying to create space to value something other than traditional forms of knowledge making is difficult work—look I don’t have any argument with that—I too was a master’s and doctoral student stationed with an assigned carrel in the stacks immersed in reading and rigorous theoretical and analytic work. But our relevance in the 21st century requires that we have to have more sophisticated options than collecting and discussing things; we have to engage that work, we have to be able to demonstrate the verity and impact of that work for purposes of societal amelioration.

So, we need our bench chemist, but there’s also space within the continuum of knowledge creation and practice for the engaged chemist that takes students into the community to examine homes with lead paint and analyze samples to explore the scientific principles that that analysis affords, but also takes the next step to connect with policymakers and community leaders to bring the kind of energy to bear that will make that situation better.

So much of the democratic engagement on our college campuses seems to pivot out of the liberal arts. Imagining America has broadened this focus to look at the humanities, arts, and design, among other areas. Particularly, how do the arts enter into the realm of democratic engagement?

One of our key questions is, how does art awaken that sense of civic agency? If we are a consortium that pivots on the arts, then we need some kind of expression of that. The D.R.E.A.M. Freedom Revival, led by IA associate director, Kevin Bott, is one avenue for this expression. Periodically, the Freedom Revival comes together to hold engaged musical performances where audience members are asked to join in; they might come on stage to testify to their dreams for their community as well as their struggles. We focus on all kinds of issues: education, healthcare, democracy, among others. In these performances we believe we are contributing to a broader democratic revival that encourages community members to commit to this revival.

Thinking about the idea of a revival of civic agency is powerful. We are trying to harness the notion that the oldest democracy in the world was here in Syracuse, the Onondaga Nation. In these performances, we use a community-engaged model to stimulate participants in an awakening of that history and connecting it to contemporary issues. This is one way IA is operating to connect to our understanding of the power of artistic expression, in addition to our work around tenure and other initiatives.

I think of IA’s work in the arts as creating spaces where hearts and spirits meet minds for deep, sustained, impactful, knowledge creation and healing. And we use words like spirit, heart, and healing because those things are achieved with the arts in a way that other disciplines don’t; art stimulates things that other disciplines don’t and creates spaces that aren’t otherwise there.

Syracuse University has worked very hard to strengthen ties with the broader community. For former chancellor Nancy Cantor, this investment in the community went well beyond the push to extend teaching and learning into the community, but to invest in physical infrastructure—buildings and pathways that connected the university and community, what she referred to as “third spaces of interaction.” How should this fit into our thinking about the spaces our campuses occupy?

This whole Connective Corridor and The Warehouse is developing a district that supports thinking about space—how we occupy space and how that space opens us up to the community. It’s one thing to understand the value of this, it’s another thing to get the resources. One of former Syracuse chancellor Nancy Cantor’s approaches has been to invest in space. Things that are attached to the ground mean something to the community. The Warehouse, in downtown Syracuse, was an eyesore in this community. As I understand it, there was a financial bond that Syracuse owed New York State from a residence hall they had built. So instead of paying the state through the bond, Syracuse University built a space to improve the community. This is leveraging resources and shifting mindsets and discourses. People begin to talk and think about what it means to be a Syracuse citizen and have their space and city expressed through the eyes of artists and citizens.

The Connective Corridor and Near Westside Initiative, [initiatives started by Syracuse University as a means of bolstering the community-university relationship and investing in space] means nothing without important partnerships in the area. They get grants to invest in community, and Syracuse doesn’t have total control of the money. Nancy Cantor understood a deeper commitment was needed. When you empower the community, it makes a difference. It’s a different way of thinking about institutions of higher education and creating third spaces, between the university and the community. Building relationship with strength and a sense of cohesion is difficult.

The point here is that there is something very important about the nexus between higher education institutions and the community that can be leveraged for good or for ill. I want to be part of a nexus of individuals that embolden the disciplines in a way that will expand knowledge creation and helps develop solutions to pressing public problems.

You can find the original version of this interview at http://kettering.org/kfnews/making-scholarship-tangible.

Portraits of Fake People

In Boston today, I could see clear into an office building. A row of abandoned workstations lined a dull taupe corridor overlooking a brick plaza. Generic office artwork offered a splash of color on the wall. A man in a suit stared at his computer. Another man stood next to him.

For a moment I thought they were fake. Mannequins, or cardboard cutouts, perhaps. The whole scene seemed staged. A museum exhibit. Office Life Circa 2000.

In the T stop a woman had fabulous 80s hair. Side-swept and crimped. She may have been wearing a jean jacket. Her husband was, with his mullet and ball cap. Their daughter rocked a bedazzled Patriots tank.

Was this a costume or everyday attire? I wondered. Or, perhaps, a special occasion?

Is this real life?

Crammed into the T car brought back years of people watching memories. I used to guess what stop each person would get off at. Based on their appearance, their demeanor, their habits, their company. I’m not sure, really, but I almost always got it right.

And I’d make up stories for all these fake people. Where they were coming from and where they would go. What made them anxious and what got them excited. What kind of work they did and what kind of day they were having. I’d imagine it all.

Then they’d get off at the stop I predicted for them, never to be seen or heard from again.

Of course, these fake people weren’t really fake people. It was the lives and personalities I’d invent for them that were fake – just as I imagine others invented lives and personalities for me.

But in the absence of real information – of conversation and experience sharing – these fake portraits are the best we can know about the mass of humanity. About real people.

And while they are fake – deeply subject to our own bias and interpretation – there is something real in them as well.

The man on the train, dark circles under his eyes and paint on his pants, drinking a coffee while adjusting the hardhat attached to his backpack. The woman in scrubs who looks like she’s lost the will to move. The young men and women in suits, adjusting their blazers and trying to look casual. The mothers, the fathers, the tourists, the students, all going about their lives, celebrating achievements and struggling with tragedy.

I will never know the Truth. I will never know them all. But I have stories for each and every one.

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