Silent Theft

The Private Plunder of Our Common Wealth

David Bollier

• Publisher: Routledge
• Year: 2002
• ISBN:
  9781136760341
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

'They hang the man and flog the woman That steal the goose from off the common, But let the greater villain loose That steals the common from the goose.' - Traditional nursery rhyme Until a 1998 federal court decision, a Minnesota publisher claimed to own every federal court decision, including Roe v. Wade and Brown v. Board of Education. A Texas c

Part II.

Varieties

of Market

Enclosure

4.

Enclosing the Commons of Nature

The first person who, having fenced off a plot of ground, took it into his head to say this is mine and found people simple enough to believe him, was the true founder of civil society.

—Jean-Jacques Rousseau,
Discourse on the Origin of Inequality, 1755

In 1805 a certain Lodowick Post and his dog did “upon a certain wild and uninhabited, unpossessed and waste land, called the beach, find and start one of those noxious beasts called a fox.” As Post gave chase, another hunter, Jesse Pierson, suddenly appeared, shot the fox, and claimed it as his own. An enraged Post argued that the fox really belonged to him, and filed a lawsuit in a New York State court. Thanks to this obscure hunting dispute, every law student today is introduced to the moral and philosophical complexities of “owning” nature through Pierson v. Post. By what rationale should Pierson or Post (or neither) be considered the “owner” of the fox?

The case illustrates some deep ambiguities and tensions between nature and property law. Nature, after all, is a vast, constantly moving web of interdependent creatures, plants, and processes. It is sovereign and unpredictable. Nature transcends our systems of economics, law, politics, and culture. It transcends us, the human species.

But our modern ideas about “property” presume that nature is amenable to strict individual control, use, and sale. Property law attempts to fence nature into ownable parcels. It artificially severs each parcel fro m the ecological whole so that the “bundles” of property rights can be freely traded in the marketplace for whatever purposes are seen as useful or lucrative. A fundamental question of our times is whether the natural world can be routinely subdivided, commodified, and alienated from its context without inflicting lasting ecological damage.

In his trenchant and entertaining Slide Mountain, or the Folly of Owning Nature, Theodore Steinberg explores the dilemmas of living in a culture “in which the natural world has been everywhere, relentlessly, transformed into property.” The book explores the absurd, destructive results that occur when people try to claim ownership of groundwater reservoirs in Arizona and land at a river bend that is constantly eroding and accumulating elsewhere. Steinberg explores the daffy logic of property rights applied to the weather (do farmers have a legal claim against a company that purports to make rain?) and airspace over Manhattan buildings (why is the empty air above Grand Central Station worth tens of millions of dollars?).

These may be unusual instances of property claims on nature, but they also show how deeply rooted our legal categories really are. We allow the estates of dead celebrities to own and license their images, and the rock band U2 to sue rival claimants to that letter and numeral. Many landowners consider their property rights to be so absolute that they are waging pitched legal fights against the Endangered Species Act and other environmental laws as unconstitutional government “takings” of their real property.

We forget that property law is not an immutable, self-evident set of principles but a contrived artifact of our politics and culture. Steinberg notes that “the impulse to turn everything into property has not just confused but impoverished our relationship with the natural world by reducing that world in all its complexity a giant legal abstraction. The natural world's continual resistance to human meddling suggests the weakness of a system of thought that centers so thoroughly on possession. Moreover, this impulse to transform nature into property may continue to limit our ability to adapt successfully to the physical environment.”¹

We know at some level that nature cannot really be owned. But because the doctrines of property law generally “work”—at least on an individual level—and are widely accepted cultural norms, we easily forget that nature has its own ideas about “control.” We are too invested in the specious accounting of conventional economics which regards the resources of nature as free and inexhaustible, not finite and fragile. And why not? The system has returned handsome profits for decades. It brings to mind Woody Allen's closing joke in Annie Hall about a guy with a crazy brother, who thought he was a chicken: “The doctor says, ‘Why don't you turn him in?’ The guy says, ‘I would but I need the eggs.’” Common sense tells us that wildlife, genes, and the atmosphere cannot really be owned and that finite natural resources cannot be consumed indefinitely. But who are we to question the limits of our cultural fictions when they seem so functional and (for some) so lucrative? We need the eggs.

The tensions between nature as a sovereign force and property law as an instrument of human control—so obvious upon reflection—is the primary theme of the next three chapters. For millennia, nature has served as a commons for the human species. It has been a remarkably resilient, enduring system of diversity and self-replenishment, a source of both material plenty and spiritual renewal. Now nature's sustainability is being challenged by unprecedented human encroachments.

Armed with technologies, traditional property law, and faith in the “progress” of market expansion, human beings are reengineering the genetic blueprints of life and clear-cutting tropical rain forests for quick gains. We are expanding human habitations further into the wild and disrupting regional ecosystems from coral reefs to Arctic tundra. We are releasing countless toxicants that become ubiquitous in the food chain, and emitting chemicals that are warming the global atmosphere and depleting its ozone layer. Clearly some new rapprochement between our market-based culture and the sovereign needs of nature must be reached.

Any renegotiation must acknowledge that a significant change occurs when an economic and technological calculus of control is superimposed over something that is wild, free, and common. The closed, entropic system of the market interrupts and often supplants the open “gift economy” of nature, masking the actual costs of the externalities it generates. This chapter examines what happens when markets enclose nature. It is followed by a look at enclosures of “frontier commons” such as wildlife, icebergs, and genetic structures (Chapter 5) and natural resources on publicly owned lands (Chapter 6).

Enclosing the Commons of Nature

“Without doubt, the single most damaging aspect of the present economic system,” writes Paul Hawken, the eco-minded business analyst, “is that the expense of destroying the earth is largely absent from the prices set in the marketplace. A vital and key piece of information is therefore missing in all levels of the economy. “² Many markets routinely fail to take full account of the actual externalities they impose upon nature. Commercial perturbations once thought to be trivial—chemical waste at the parts-per-trillion levels, the draining of wetlands, the use of logging roads in forests—are later discovered to have serious consequences. Markets tend to impose a homogeneity, predictability, and uniformity on natural systems that, in their pristine state, are extravagantly fertile, diverse, complex, self-replenishing, and unpredictable.

The replacement of prairie landscapes with monocultures of corn may be exceedingly shrewd and efficient in the eyes of the marketeer. But from an ecological perspective, “the result is a ‘leakier’ system that lets more energy, nutrients and topsoil slip away and shows less resistance to pests and other natural shocks,” as one scientist has put it.³ It may be more “efficient” over the short term for mining companies to rip off the tops of mountains in West Virginia to extract coal. But the enduring damage to streams and wildlife, not to mention to the natural beauty of the landscape, makes the practice grotesquely destabilizing.

Contemporary market regimes tend to interfere with biological diversity, species interdependence, and closed-loop cycles that generate no waste. They introduce a shift in basic priorities—from natural sustain ability to market logic, from a self-correcting and stable natural system to a brittle, jerry-rigged human system requiring constant intervention, from a commons managed to benefit all to a private property regime managed to generate profit for a few. Enclosures of nature not only disrupt the normal functioning of the earth's life-support systems, they aggravate social and economic inequities in the fashion of English land enclosures.

These acts are of a piece with a culture that treats nature as an inert object, not as a living essence. From what we know about the fierce autonomy of nature, many market enclosures amount to “control fantasies”—a superimposition of rigid technologies and short-term market logic on a dynamic natural order that operates according to evolutionary time horizons.

Exploiting the profit potential of nature often means “taking it private” in some respect. This might entail the benign “branding” of some component of nature (e.g., Chiquita stickers on bananas, a Perrier label on spring water), but it can also involve insidious strategies such as patent claims for common plants. By way of genetically engineered “improvements,” multinational drug, agricultural, and biotechnology firms are laying proprietary claim to common plants and crops, removing them from the folk commons. Paradigmatic examples are corporate patents on substances from the neem tree in India, and Rice-Tec Corporation's patent on basmati rice that has been grown in India for thousands of years (see Chapter 5).

Why is conventional economic activity so seemingly at loggerheads with the imperatives of nature? A legendary plant breeder put it well: “Our demand for immediate gratification and quick, carefree returns on all investments leaves no time to wait for intricate things to be worked out, no time to evaluate true worth, no willingness to listen to those who contend with natural complexity. “⁴ The invention of new technologies may help us better understand natural principles, but they also embolden us to substitute short-term business-driven priorities for long-term ecological principles.

The culprit is not economic activity per se, but the kind of economic activity that so often prevails. It is possible for market forces to be harnessed to achieve more environmentally benign outcomes, as a number of commentators have explained.⁵ Recently Paul Hawkens, Amory Lovins, and L. Hunter Lovins have marshaled a wide array of practical examples in their important book, Natural Capitalism.⁶ Rather than assume that the bounties of nature are free and inexhaustible, as our current economic thinking does, “natural capitalism” understands that nature itself is a form of capital—finite, valuable, and irreplaceable— which must be assiduously preserved and maintained. Under natural capitalism, it becomes strategically important for companies to recognize the scarcity value of ecosystem services and to strive to integrate them seamlessly into product design and manufacturing. Nature can be regarded as a commons, subject to individual and collective restraints, not as an open-access free-for-all.

Hawken and the Lovins set down four basic principles for reorienting the economy toward a more ecologically benign path: radical resource productivity to slow the depletion of natural resources; the redesign of industrial systems so that they can imitate the closed-loop efficiency and waste-free character of biological systems (“biomimicry”); a “service and flow economy” that measures affluence by quality and utility, not by the sheer acquisition and “throughput” of material; and new investment in natural capital so that the biosphere can be maintained properly and produce more abundant ecosystem services. Each of these principles, in different ways, seeks to minimize the impact of market externalities on the environment. Historically, of course, business actors have generally ignored such considerations because they are seen as “bad for business.”

This gets to the nub of the problem. When the defining matrix for business activity is quantitative and economic—the “bottom line”—it becomes harder to see, let alone honor, moral, social, aesthetic, and ecological considerations. The lamentable consequences of narrow market thinking has been expressed in different ways over the past century by Aldo Leopold, Rachel Carson, John Muir, David Brower, Barry Lopez, Wendell Berry, Peter Matthiessen, among many other conservationists, ecologists, activists, scientists, and poets. Their common message, crudely put, might be: Nature must have the room to be nature. Human beings must have the humility to respect the mysteries of nature. Ways must be found to restrain the market or to reform the culture in which it functions.

In his prophetic call for a “land ethic” in A Sand County Almanac, Aldo Leopold argued in 1949 that:

the “key-log” which must be moved to release the evolutionary process [of cultivating a land ethic] is simply this: quit thinking about decent land-use as solely an economic problem. Examine each question in terms of what is ethically and esthetically right, as well as what is economically expedient. A thing is right when it tends to preserve the integrity, stability and beauty of the biotic community. It is wrong when it tends otherwise.⁷

The root problem is that economic categories of thought and commitment are now so pervasive and controlling. Culturally, we do not know how to integrate non-economic values into the operations of the marketplace in routine, efficient ways. Perhaps more accurately, the imperatives of business organizations and our political culture militate against it. Most attempts to “internalize” market externalities—to make polluters pay the real costs of their harm, to integrate long-term consequences into today's choices, to develop more accurate indices of sustainability—end up as pitched political struggles. We end up with double-entry accounting: in one column, an economic theory that discounts or ignores market externalities, and in the other column, the real-life economy and our political culture, which sanctions a reckless production of externalities and an inept process for forcing companies to internalize those costs.

The failure of our socie...