Food as a Commons: why Law Matters?

By Dr Tomaso Ferrando, Lecturer in Law (University of Bristol Law School).

Since Hardin’s publication of the Tragedy of the Commons in 1968, the perception of ‘the commons’ has been closely intertwined with food and agricultural production. As a matter of fact, Hardin was worried that common land which was openly and unrestrictedly accessible to livestock would have been quickly impoverished and eventually lost its economic potential. According to Hardin, livestock production should take place on the basis of a well-defined and individualist proprietary regime which allocates the land to all users, so that the cost of idiosyncrasy and over-exploitation is borne by those who act irresponsibly and negative externalities do not affect the amount of resource that is available to the other members of society.

Through the years, the flaws and ineffectiveness of Hardin’s theory have been uncovered. For example, David Harvey has suggested that Hardin only considers the implication of commons-owned land (the natural resource), while the crucial element is represented by the commons-ownership of the means of production. Similarly, the research conducted by Elinor Olstrom through the lenses of economics and governance led to the identification of several examples in the natural world where commons-pooled resources are maintained, reproduced and shared by members of society through the introduction of rigorous forms of governance and collective discipline. Moreover, the idea that private titling and private exploitation of resources reduce the risk of over-consumption and unsustainability has been proven wrong in numerous cases of socio-environmental disasters and by the depletion of soil produced by corporate farming.

Water and water rights represent one of the most emblematic examples of the conflict that may emerge between individual rights and collective needs. All over the world, from Coca-Cola’s bottling plants in India to the Bolivian city of Cochabamba, the allocation of private concessions over an essential good has reduced access, increased costs, and led to the allocation of the resource on the basis of monetary considerations (exchange value and profit) rather than needs (utility value and justice). Similarly, the recent eviction of Maasai people from the fertile area around Lake Victoria in Kenya and Tanzania or the possible end of Colombian peasantry to favor large-scale monoculture are closely intertwined with the identification of private rights over land as an exploitable commodity and the misrecognition of collective titles, collective governance and collective functions (ecological, social, religious, economic, etc.).

However, despite the central role that ownership of the resources needed for food production played in Hardin’s example, despite the surge in the academic attention to the commons, and despite the socio-ecological role that food plays at the planetary level, there have been only few attempts to enrich the paradigm of the commons with an engagement with food and agriculture. With a forthcoming volume that I am co-editing together with Jose Luis Vivero Pol, Olivier De Schutter and Ugo Mattei, we aim to fill gap in the literature by asking 21 contributors from a variety of backgrounds to engage with the idea of food as a commons and to provide their interpretation of what it would mean to consider food (and the food system) not as a commodity that can be privatized and appropriated, but as a commons.

For sure, mainstream economic theory (including Ostrom’s work on the commons) explains that goods that are rivalrous and excludable must be considered private. On the contrary, commons are considered those goods that are rivalrous but non-excludable: in other words, the supply can be depleted but people are not restricted in their use. Food, therefore, could fall in both categories: once food is eaten, the resource is depleted, but the distribution of the resource – i.e. its access and the allocation of the benefits produced by the food system – can also be thought outside of the private framework. One of the main challenges of the book has thus been the dialogue with the authors to nudge them towards a commons-based approach to food as something more than a commodity that can be appropriated according to individualistic and idiosyncratic considerations.

From the perspective of law, one of the most interesting aspects is that, despite the multidisciplinarity and the diversity of subjects, several of the chapters discuss the role that law and legal structures play in treating food as an appropriable resource. In several chapters, authors ask the readers to question the current structure of intellectual property rights (over seeds and knowledge), private land rights, the rules of global trade, the dismantling of public support to agriculture and commodity boards, the national and international regulations of labour, and a series of more detailed regulatory interventions such as the prohibition of gleaning and the criminalization of dumpster diving. More importantly, they highlight the need for alternative and creative legal thinking in order to reverse the ongoing paradigm.

Only few of the authors are lawyers or have a legal background. Law, however, seems to be central to the transformation of the complexity of the food system into a capital-labour-natural resources tryptic, where it does not matter who makes decisions, who benefits from food, what is the socio-ecological value of food beyond its monetary consideration, who bears the hidden costs of production and distribution, or what are the intergenerational and justice implications of the corporate food system: what matters is the possibility of producing cheap food and trading it on the market on the basis of its exchange value.

Each chapter is a reminder of what does not work in the current corporate food regime and what should be changed if we were to abide by the idea that the food system, like water, air, or knowledge, should not be appropriable but rather collectively accessible, managed and reproduced. However, although it appears easy to criticize law for the way in which it engages with the food system, there is no doubt that much more must be done by lawyers and legal academics in order to imagine and construct legal structures capable of implementing the premises and aspirations of the food system as a commons.

This is thus an invitation to all lawyers and legal activists who believe that the food system must be changed and that a paradigmatic shift is essential: it is not enough to take law seriously and point the finger against what is broken. We need alternative conceptions of trade law, investment law, property law, labour law, and of any other legal structure that consider food as a private object and the food system as nothing else than a production chain. We need legal creativity and imagination. The Routledge Handbook on Food as a Commons aims to open up the dialogue and spaces for intervention, but the collective journey to a commons-based food system has just begun.

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