Monthly Archives: January 2005

a commons taxonomy

A commons (or, as the Brits say, “a common”) is a shared

resource. Some common resources are made by the group that shares them; others

are found in nature.* Meanwhile, resources can be shared in a variety of ways.

In a libertarian commons, no one owns the assets at all; since there are no

property rights, everyone shares. In a communitarian commons, a tight group

of people owns a resource jointly. Membership may come as a birthright, as in

peasant villages. Members can’t sell or trade their rights. Some such communities

are very stable and efficient because there are thick bonds of trust and obligation

within the group. In a voluntary/associational commons, membership is a matter

of choice. One can join and quit at will (although joining may be subject to

the group’s approval). Whether it’s an informal network or a registered 501(c)3,

the association jointly owns certain assets. But associations differ from corporations

in that ownership is not divisible, proportional to investment, or purchasable.

If you quit the association, you simply renounce your stake. Finally, in a democratic

commons, the government owns and manages assets and holds them in public trust.

Combining the “made”/”found” distinction with the type of governance yields

the following taxonomy:

  “found” “made”
libertarian the oceans, the ozone layer; works of art from the past that are now in

the public domain

 the Internet; open-source software; science, when it reflects R.K. Merton’s

CUDOS norms
communitarian coastal fishing villages and other communities that subsist on natural

resources; very conservative religious communities

 rural communities that create and share common pool resources, such as

Alpine meadows and water districts; public spaces that belong to tight communities rather than

democratic states

voluntary/associational preservationist organizations that are stewards of some natural or cultural

heritage

 clubs, religious congregations, political parties
democratic oil reserves, national forests public spaces such as squares and museums; laws, legislative bodies

 

All of these forms have advantages and disadvantages. However, I am especially

enthusiastic about voluntary/associational commons that make goods. They are

the heart of Tocquevillian civil society, in my view. Communitarian commons

are too restrictive–and libertarian commons, too fragile–for my taste. In a

lot of my scholarly and practical work, I’m trying to give the libertarian commons

known as the Internet more of an associational feel.

*The “made”/”found” distinction

is really a matter of degree and can certainly be debated in particular cases.

Simon Schama, in Landscape and Memory, argues that almost all “natural” landscapes

have actually been deeply influenced by people.

the civic significance of “problem-solving courts”

Rekha Mirchandani has written a fascinating short essay with the somewhat forbidding title, “Battered Women’s Movement Ideals and Judge-Led Social Change in Domestic Violence Courts.” It’s in The Good Society, which is unfortunately not online.

Domestic violence courts are an example of specialized judicial bodies; other examples include drug courts, mental health courts, and community courts. These bodies have been created since the 1980s to increase efficiency by streamlining the resolution of many similar cases. For example, all drug cases in a particular community may go to the “drug court.” Each type of court is also a response to a social movement that has demanded special attention to its issue. A third motive for creating such courts is to combine punishment with counseling and other services.

Thus domestic-violence courts were created to increase efficiency but also in response to demands from the women’s movement. Feminists argued that battery was a deep (but remediable) social problem, arising because people viewed masculinity in terms of “power and control” and therefore excused criminal behavior when it occurred within households. Feminists sought domestic violence courts as a way to ensure that their concerns were addressed.

As Mirchandani notes, we often assume that there’s a tradeoff between efficiency (on one hand) and moral thoughtfulness, discretion, and dialogue (on the other). Domestic-violence courts achieve marked gains in efficiency by standardizing the treatment of similar cases and delegating most tasks to prosecutors and clerks. Defendants who plead guilty are moved rapidly through a series of steps from plea-bargaining to counseling and mandatory community-service, overseen but not personally managed by the judge. As a result, judges are able to devote their time to crafting the overall process, listening to victims and defendants, and making statements at appropriate times.

For example, a judge may tell a victim who is present in court, “Nothing justifies the use of force. … You do not need to take responsibility for what he did. He has to appreciate what he did.” The judge may also tell a group of convicted fathers that domestic violence tends to recur in families. Thus, “You can make a big difference for your family now and for your child’s family later and down on through the generations. It’s a big responsibility. It’s a big contribution to the community.” (By the way, I hope that judges listen as well as lecture.)

In short, the gains in efficiency that come from standardization allow the legal system (a) to respond effectively to a legitimate demand for more attention to domestic violence; and (b) to engage in a dialogue with defendants and victims, using ideas that first developed within a social movement and were later endorsed by a democratic government. Mirchanandi concludes, “In domestic violence courts, we see the values of efficiency and the values of social change, traditionally conceived as oppositional, coexisting pleasantly and effectively side by side.”

Domestic-violence courts are only helpful to the extent that the feminist theory of violence is valid–as I think it is. Drug courts may be less helpful, because their ethical assumptions may be misplaced. (One can even imagine a “problem-solving court” that embodied awful values and allowed a judge to hector cowed defendants with mere prejudices.) However, from the perspective of democratic theory, it is important to recognize that a system can become more responsive and more intentionally ethical as a result of being made more efficient.