A process that is regenerative increases prosperity and health for humans and the natural environment through holistic thinking and meaningful community participation, by all members of the community. This broad approach to planning and decision-making seeks to discover what we hold in common, and how all can benefit by common undertakings.
Early humans regarded nature (of which they considered themselves a part), including other animals, plants, water, air, and soil as available to all and held in common by all. The coming of agriculture and civilization gave rise to the concept of personal property and private ownership and that ownership extended to the land and what was located on it. Nevertheless, over the centuries, the concept of the commons, defined as shared stewardship of natural resources, such as navigable water, shores, forests, and air has persisted.
The term “commons” derives from the traditional English legal term for common land and was popularized in the twentieth century as a term for a shared resource by the ecologist Garrett Hardin in a well-known 1968 article called The Tragedy of the Commons.
Many may remember learning in school about King John in 1215 being forced by the English barons on the plain of Runnymede to sign a document settling many of their grievances. This legal document, among other things, provided for two essential individual rights: (1) not to be imprisoned and executed except by a decision of a jury of their peers; and (2) the right to have the law govern what happens to them, rather than being subject to the mere whim of an absolute monarch who was above the law. These rights eventually became the basis of the concept of due process, which was incorporated into the charters of many of the American colonies and ultimately was written into the U.S. Constitution’s Fifth Amendment.
The Magna Carta of 1215 has often been held up as the foundation of individual rights, especially in the United States, where individuality is especially emphasized. A companion agreement between the king and barons reached two years later, though, the Charter of the Forest (1217), is an often overlooked but critical communitarian counterweight to the private rights emphasis of the 1215 Magna Carta agreement.1
At least in Europe, the Charter of the Forest may well have been the first environmental statute. The Charter was sealed in St. Paul’s on November 6, 1217 alongside a shortened Charter of Liberties from 2 years earlier (which became the Magna Carta). Besides curbing the power of the monarchy to seize common land and resources for its own use, it asserted the right of all to free access to the commons.
In 1066, William the Conqueror not only distributed parts of the commons to his loyal followers but also turned large tracts of them into ‘royal forests’ – i.e., his own hunting grounds. By 1086, there were 25 such forests. William’s successors expanded and turned them into revenue-raising zones to help pay for their wars. By 1217, there were 143 royal forests.
The Charter changed that and forced the monarchy to recognize the right of free men and women to pursue their livelihoods in forests. The notion of forest was much broader than it is today, and included villages and areas with few trees, such as Dartmoor and Exmoor. The forest was where commoners lived and worked collaboratively.
The Charter protected the right to roam and the right to use public spaces for law-abiding purposes. It was the first legislation to assert the rights of the property-less, of the commoners, and of the commons. The foundation of the Charter was the concept of the commons and the need to protect them and to compensate commoners for their loss.
The Charter’s 17 articles assert the eternal right of free men and women to work on their own volition in ways that would yield what they need to live from the commons, including the right to pick fruit, the right to gather wood for buildings and other purposes, the right to dig and use clay for utensils and housing, the right to pasture animals, the right to fish, the right to take peat for fuel, the right to water, and even the right to take honey.
In our own day, imagine a version of this fundamental idea as at least a partial remedy for homelessness and food insecurity.
For hundreds of years the Charter was read aloud in every church in England four times a year. The Charter was on the statute books for longer than any other piece of legislation, repealed 754 years later, in 1971.
In 2015, while spending lavishly on celebrating the Magna Carta anniversary, when the government was asked in a written question in the House of Lords whether it would be celebrating the Charter that year, a Minister of Justice, Lord Faulks, dismissed the idea, stating that it was unimportant, without international significance. The American Bar Association disagreed, though, and suggested the Charter of the Forest had been a foundation of the American Constitution and that it was more important now than ever before.
The Charter set the foundation for what is now called the communal stewardship of pooled assets and resources.
The Charter echoes through the centuries in the underpinning of the American conservation movement. America’s National Park Service was created by the Organic Act of 1916. The new agency’s mission as managers of national parks and monuments was clearly stated:
“….to conserve the scenery and the natural and historic objects and the wildlife therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.”
Though the right to hold individual property and to secure those rights from seizure by the government or others in power is itself a fundamental human right, we must also recognize that the earth and its inhabitants are not all available to be surveyed, annexed, divided, extracted, and consumed by individual interests at the expense and to the detriment of the human community as a whole. We all need clean air, clean water, abundant and diverse wildlife, healthy soil, forests, grasslands, and other natural features to sustain life on this planet. This is the common heritage of all inhabitants of our planet, and we are stewards of this legacy.
In the weeks ahead, this blog will be exploring these concepts of the commons and collective stewardship of the biome in relationship with the laws and principles we have in place protecting individual property rights from the powerful who would violate the rule of law to exploit and take from the powerless for their own benefit. Regenerative governance requires a fresh look at our biosphere, its inhabitants, and their relationship to another one another in a fundamental way. Only by considering our earth “as a whole” and creating a decision-making and governance system that allows meaningful participation by all its inhabitants can we create a future that will be successful and allow us all to thrive and flourish. In fact, in the face of the climate crisis, it may be the only way in which we will survive.
1. Paul Babie, Magna Carta and the Forest Charter: Two Stories of Property, 94 N.C. L. Rev. 1431 (2016). Available at: http://scholarship.law.unc.edu/nclr/vol94/iss5/4