The approaches we have examined in the first part of this book have tended to theorize the common as (a) entirely immanent to “biopolitical production,” in the case of Michael Hardt and Antonio Negri; (b) as involving threatened public services or goods produced by the state, as in the case of the alter-globalization; or (c) as the intrinsic qualities of certain goods or resources, as in the case of standard political economy and, to a lesser extent, the work of Elinor Ostrom. However varied these three approaches may be, they all either explicitly link the common to state property or at least leave open the possibility of anchoring the common in the property form, even if the form of property itself is left indeterminate (which is to say dependent and adaptable to the various “common goods” in question). This is why we now need to more explicitly confront the relation between the common and the law of property. If the common is not directly immanent to the social itself – or even a “tendency” of the social that we need only stimulate to bring into existence – it is because the common is first and foremost a matter of law, and therefore a determination of what must be. The challenge here is to substitute a new law by rejecting the claims of the old law. In this sense, then, it is a confrontation of law against law: either we accept the law of property as an exclusive and absolute right, in which case the common will never be more than a residual phenomenon eking out an interstitial existence in the margins of society left unoccupied by property, or we assert the common as the principle of a new law that will re-organize the whole of society by radically challenging and overturning the reign of property.
To this end, Chapter 6 traces a genealogy of the law of property in order to show how property rights were in fact a rather recent construct in Western history. We also show how the supreme Western legal dichotomy between public and private law is also a recent invention, despite spurious claims that the latter is rooted in Roman law. The true opposition facing us is not therefore between common property and private property, but between unappropriability and every form of property as such (whether private or state owned).
In Chapter 7 we then examine the history and scope of Anglo-Saxon “common law,” especially the latter’s claim to limitless self-improvement through the continual adaptation of older customs. As we argue in this chapter, the law of the common cannot be based on English common law (or customary law), insofar as common law is constituted of a body of experts, lawyers, and judges, all of whom are continually concerned with selecting laws that respect, and are compatible with, private property.
In Chapter 8 we theorize the law of the common as a law that directly and immediately asserts itself as the exclusive law of the poor against the law of the privileged (rather than a mere customary law that ignores the reality of social conflict altogether). Our inquiry in this chapter will be guided by Marx’s articles on the famous “theft of wood” debate from 1842, which will help us interrogate the very notion of “poverty” itself.
In Chapter 9 we look more closely at the emergence of the idea of a “proletarian law” at end of the nineteenth century. We show how this idea partially evolved out of the older laws of the guilds and early trade unions, but also how it was based on the creation of new institutions designed to meet the challenges of the historically original experience of the nascent industrial labor movement. By focusing on the legal creativity involved in the creation of workers’ institutions and laws, we reveal the inadequacy of a workers’ law based solely on the unconscious transmission of prior customs. As we argue, the law of the common can only be produced by a conscious act of institutionalization.
Chapter 10 will be entirely devoted to an examination of the nature of the institution as an activity, in contrast to the sociological tendency to privilege the already “instituted” at the expense of the act of “instituting.” Our aim here is to outline the distinctive features of the specific practice that creates institutional rules, or what we call “instituent praxis.” Instituent praxis, for us, is not a matter of post facto recognition of that which already exists, nor an act of creation ex nihilo, but a form of practice that creates the new through the transformation of that which already exists. In order to have any chance of success, the law of the common must proceed from this type of praxis rather than solely relying on the spontaneous diffusion and transmission of customary rights.