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Rhetoric of the Commons

A Response to Reclaiming the Commons

Richard D. Parker

8 The Commons: Ours. Our common property—to be shared by all. It is being taken away. By and for a privileged few. Enclosed! We must reclaim it! As rhetorical riffs go, this one is potent. It is especially potent on the left. When, however, we harness it to advocacy of new government programs—when we depict the commons not as a locus of real democratic politics, but as a focus for policy-making—we tend to hobble it. True, we can do both at once. But mixing commons-as-politics with commons-as-policy-making dilutes the potency of the rhetoric and so diminishes a common resource…part, even, of our commons.

There is, of course, hardly a bright line, in kind or in practice, between politics and policy, between political talk and policy talk. Yet the sensibility of the two is, I think, different. (Legal advocacy is more like politics than policy in this respect, but that's another story.) Policy-making—imagining a job to be done, a problem to solve, wanting to get it right and make it work—tends to be alienated from what policy wonks see as the bloviating of democratic politics. (Take that as an assumption, in any event, behind what follows.)

I want to make three points. First, the rhetoric of the commons flourishes in soil of real democratic political dialogue, yet it tends to wither in policy talk. Second, the malleability of this rhetoric makes clear that whatever specific implications it is taken to have depend on political decisions in democratic politics—on counting votes. Third, the cause that the rhetoric of the commons best promotes is not, after all, public management of an expanded "public" realm. Rather, it is the expansion of democratic politics, the process through which a people may choose how to measure that realm and how to govern it: the cause of popular sovereignty itself.

The purpose of invoking the rhetoric of the commons is to (try to) shift the baseline, norm, or background against which an issue is evaluated. A baseline of communal rather than individual "ownership" can make the proposed public sway over a resource or activity seem normal and right rather than a radical departure and turn the tables of argument from the very outset. But how is this rhetorical shift to be accomplished?

In policy talk, with its rationalist and managerial impetus, the claim tends to be essentialist and classificatory: something "is" or "has been" or "should be" (according to abstract criteria) a matter of public interest (the commons, the commonweal, our common birthright or heritage) and therefore it should not be privatized (enclosed) but instead be subjected to the discipline of public policy for the good of all. By itself, however, such a claim is rhetorically thin. Not because it is "legalistic." (Despite popular misconceptions, no decent modern lawyer would rest on such a claim.) But because it is static.

If rhetoric works, it works by moving us. To move us, it must be dynamic. It must be about a relation between forces. It must be about conflict or, at least, tension between them. It must be about power, about some sort of politics. If it works, it acts on us politically, moving us to take sides, thus affecting the dynamic conflict or tension that it projects into our imagination.

For the rhetoric of the commons to do this, it is far from enough to classify "public" and "private" realms, however passionate or authoritative one's tone. Instead it must vividly depict a struggle and portray antagonistic forces—one privileged, arrogant, rapacious, or selfish; the other innocent, passive, good-hearted, even pastoral. The centuries-old imagery of the enclosure of common farmland is apt. But it must be worked, not as prose but as poetry; it must be put to music. (A defense of today's "community gardens" is a small start, if a precious one.) The fluidity and excess, the uncontainable imagery, the emotion, even the literal nonsense, of rhetoric must not be dried and flattened out. Which is to say that the spirit must be that of popular political discourse, rather than of policy-making.

Contrary to the aspirations of policy-making, the rhetoric of the commons has no plausibly determinate implications. It goes down easily on the left to depict broadcasting or medical research, the Internet or schooling, as a commons in need of public management. But what about newspapers? (We are used to defending their free private ownership, but why?) What about all legal services? (We talk of "private attorneys general," but why?) Or take "public" versus "private" ownership of land, from which the rhetoric of the commons is drawn. Couldn't Stalin's collectivization of farmland be depicted as an "enclosure" by a selfish, rapacious class of officials? And couldn't the "privatization" of farmland now underway in Russia be depicted as a reclaiming of a "commons" by innocent, oppressed citizens? Can't a "public" regime of "private" ownership be imagined, in some circumstances, as one form of communal management for the (comparative) good of all?

Of course, the policy-making sensibility may respond with some criteria of what is, has been or should be "truly" public and what isn't: Has the public "invested" its labor or wealth in whatever we're talking about? Does its management impact the public? And so forth. The problem is that such criteria, again, may apply to almost anything. (Think of child-rearing.)

Here's my point: The only way to press the indeterminacy of the rhetoric to a decision is provisionally, and the only way to do that is politically. Whoever has authority must be moved to imagine a commons here or there, now or later, and defend it against enclosure—or not. That's all. Then, having marked out a commons and defended it, that authority must decide how to regulate it—through collectivization, cooperation, or some sort of market coordination. There is no "right" way.

That means democratic decision-making is needed. This necessity is rooted not only in the ethic of legitimation in our polity. It is rooted also in the indeterminacy and populist bias of commons rhetoric. This means, in turn, that a lot of people, who may not be very "well informed," are going to make the decision through a vote. The usual evasions of legitimation-by-voting—pleading that "democratic norms" inform the substance of a policy or that policy-makers will "deliberate" with one and all about it—will not do in the end. Ultimately, you have to persuade the people in whose name you claim to make policy. For at least thirty years, many left-liberals in the United States have not to taken kindly to this fact. But take it we must.

The truth is that the rhetoric of the commons, (with its esoteric historical imagery) is unlikely to move the ordinary people, officials and citizens, who need to be moved. But let's assume it does. For contained in it is a clue to its own most compelling use: If the fate of the "commons" depends on democratic decision, then the most obvious candidate for defense against "enclosure" is the democratic process itself. And if it is our aim to expand the "commons," then it is popular sovereignty, above all, that needs to be expanded.

Yes, most liberals and leftists are for "getting money out of politics." That's not what I'm talking about. Money is like sex. A Victorian campaign to expunge it is likely to be futile, therefore fatuous. What I'm talking about is a realistic defense of the democratic commons against enclosure by elite "lawmakers," whether they be self-insulated legislative incumbents, administrators or judges, free-traders or human rights campaigners in international institutions—all seeking to bypass the frustrating processes of popular sovereignty. What I'm talking about, moreover, is not just barring their bypass of democracy, but bypassing them with democracy—extending processes of lawmaking by initiative and referendum not only in the states, but in national government as well.

Few of these are goals that left-liberals have tended to embrace. Nevertheless, this is what it means, I believe, to take the rhetoric of the commons seriously—to take it straight up. <

Richard D. Parker teaches constitutional and criminal law at Harvard University. He is author of "Here, the People Rule": A Constitutional Populist Manifesto.

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