2015 marked the 800th anniversary of Magna Carta, or the “Great Charter”, the foundational document that laid the groundwork for the rule of law and civil liberties in the English-speaking world. Next year, in 2017, the world will mark the 800th anniversary of yet another great charter, perhaps slightly less well-known: the Carta de Foresta, or “Charter of the Forest”.
Like Magna Carta, the result of the Charter of the Forest was to carve out further rights and privileges for the common people, but this time with regard to the freedom to reap the bounties of the vast medieval forests and pastures, much of which had been previously designated as “royal forests” for the exclusive use of the Norman kings since 1066.
Carta de Foresta granted commoners such rights as the right for every free man to “without being prosecuted make in his wood or in land he has in the forest a mill, a preserve, a pond, a marl-pit, a ditch, or arable outside the covert in arable land, on condition that it does not harm any neighbour”, the right for everyone to “have his pannage” (i.e. the right to allow pigs to feed in a forest), highly important for a society made up largely of subsistence farmers, and the right for a man to “have the honey found in his woods”.
The Charter can be seen as an early form of environmental sustainability and land use law, as well as a type of “commons-based” thinking, which sought to distribute property rights and democratize the use of commonly held lands for the benefit of all. Over the last few centuries, commons-based thinking fell out of favour as a valid way of conceptualizing humanity’s relationship with the natural environment, eventually being famously derided by Garrett Hardin in his 1968 essay, “The Tragedy of the Commons.”
The centripetal forces that have worked to centralize control over the natural world have also resulted in the centralization of who has jurisdiction or authority to deal with the environmental crises that plague the environment. The result is that it is private industry and government at the higher levels that have the most say and ability to enact meaningful policy. In practice this means there is high potential for resistance to things like progressive and preventative sustainability measures, as authority in the hands of a few is more prone to be subject to the capricious whims of those few. In some sense, the majority of us are living under an unpredictable and potentially harmful “royal forest” regime as regards environmental sustainability.
Prominent voices have characterized environmental catastrophes and looming threats such as anthropogenic climate change as being among the most serious threats to “our species’ survival.” It is worth seriously considering whether we can reinvigorate our governments and society with some form of “commons-based” thinking that could help spur more collective, broad-based action to build a sustainable future.
Of course, it isn’t necessarily desirable to reorder our social and economic systems in the interest of recreating a true communally based life focused on subsistence (although tactics superficially aimed at doing so serve to focus much needed attention on the issues at play.). Nonetheless, re-examination of some of the theoretical concepts that underpinned the ancient commons-based approach to the environment found in the Charter of the Forest may prove productive.
One of these ideas is subsidiarity, a localizing and democratizing principle found in certain constitutional systems. Subsidiarity can be as the proposition that “the smallest possible social or political entities should have all the rights and powers they need to regulate their own affairs freely and effectively.”
Subsidiarity can take the form of a constitutional principle imbued with particular normative force, or of a supporting principle, drawn on occasionally to inform the direction of other unwritten principles. In Canada, subsidiarity falls into the latter category, though it may be gaining ground.
In either form, the principle points to a key idea inherent in commons-based thinking: the legitimacy of democratized decision-making for collective environmental concerns. From the perspective of promoting environmental sustainability and combatting or adapting to the effects of climate change, a strong principle of subsidiarity could be useful in furthering an environmentally progressive agenda that certain levels of government and high-level resource industry actors may be inclined to resist, due to profit or other motives. Further, previously disenfranchised but interested parties (such as citizens or local municipalities in areas that are particularly affected by climate change or environmental catastrophes) could help drive the process. The outcome could be a scaling back of the state-sponsored, industry-run “royal forest” that currently has full jurisdiction over our shared climate and other key areas of the natural environment.
As we consider our options for legitimizing a sustainability agenda and continue to honour Magna Carta for the invaluable contribution it has made to our civilization, perhaps the occasion of the 800th birthday of the Carta de Foresta in 2017 will awaken new interest in the ancient wisdom and legacy that the other great charter has to offer us.
Editor’s note: Akhil is not alone in looking to the Charter of the Forest in support of a commons-based approach to local governance. Another Osgoode student, Bart Danko JD/MES ’14, made a documentary film called Terra Communis in 2014 in which he invoked the Charter of the Forest as a precedent and inspiration for his efforts to get the city of Brampton, Ontario to adopt policies to favour green roofs.