The commons are not concessions. They are resources that belong to the people as a matter of life necessity. Everybody has a right of an equal share of the commons and must be empowered by law to claim equal and direct access to it. Everybody has equal responsibility to the commons and shares a direct responsibility to transfer its wealth to future generations. The commons radically oppose both the State and private property as shaped by market forces, and are powerful sources of emancipation and social justice. However, they have been buried by the dominant academic discourse grounded in scientific positivism. They need to be emancipated by an authentic shift in phenomenological perception in order to produce emancipation.
Social justice is pursued in Western democracies by the (currently declining) institutions of the Welfare State. Access to social justice programs is usually understood as provided by “rights of second generation,” which require a specific obligation of the State to respect and guarantee them.
This vision, which places the specific burden of satisfying social rights on the government, has been central to the evolution of Western jurisprudence. Since the Scientific Revolution and the Reformation, social justice has been expelled from the core domain of private law. The Scholastic notion of law in the 16th century – which was based on two concepts of justice, distributive justice and commutative justice – was abandoned at the outset of modern Western jurisprudence. Starting with Grotius in the 17th century, concerns over justice were equated to issues of fairness in contractual exchanges between individuals. Distribution was seen as applying to the whole society and not just to its parts, and was assumed as a social fact. Thus the concerns of distributive justice were expelled from legal science.
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The concept of the commons can provide exactly the necessary tools, both legally and politically, to address the incremental marginalization of social justice. Being outside of the State/Market duopoly, the commons, as an institutional framework, presents an alternative legal paradigm, providing for more equitable distribution of resources. If properly theorized and politically perceived, the Commons can serve the crucial function of reintroducing social justice into the core of the legal and economic discourse by empowering the people to direct action.
Read the full article at The Wealth of the Commons
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