Situating a watery commons

Since its original designation in the Charter of the Forest, an accompaniment to the Magna Carta in the 13th century, the commons in Britain have tended to be considered in terms of open green spaces. The Forest Charter of 1225 stated that:

“Every freeman from henceforth, without danger shall make in his own wood, or on his land, or on his water, which he has within our forest, mills, springs, pools, marlpits [for clay], dykes, or earable [arable] ground, without enclosing that earable ground, so that it be not to the annoyance of any of his neighbours.”

The provision of access to these lands made it possible for individuals to forage, to fish or graze livestock without recrimination.

Scotland was not to become part of the United Kingdom until the 18th century but in the early days of feudalism retained large areas of ancient commonly used land. These were called ‘commonty’, and detailed in charters held by the Church and the aristocracy. In his 2010 book, The Poor Had No Lawyers, former MSP Andy Wightman explains:

“Whilst commonties were well delineated on the ground (when it came to division, hundreds of beautiful maps were prepared), they were not delineated in the feu charters that landowners held but described only in general terms.”

Like those in England, Scotland’s common land too provided for the basics of life, including building materials, food and space to hold markets and fairs.

Such historical associations between grassland and forest with the commons are legally correct, but aren’t the only way to think about what a commons is or could be. Scottish law also includes the Common Good, which today comprises a heterogenous selection of land, buildings, statues and infrastructure usually bequeathed by a benefactor or otherwise considered too unwieldy to be looked after through simple public ownership. The Common Good has been mapped by the investigative journalism co-operative The Ferret at commongood.scot. Along the Tweed these include Coldstream Museum and Kelso Tait Hall, the Mercat Cross and Sir Walter Scott statue in Galashiels.

In the centuries following the feudal era, the enclosures of common land by the aristocracy galvanised many people to demand an end to the privatisation of public space. A well-known anonymous poem from the 18th century declares:

“The law locks up the man or woman,

who steals the goose from off the common,

but leaves the greater felon loose,

who steals the common from the goose.”

All this time, the fight for access to not just the resource of the land itself, but the plants and wildlife that inhabit it, and of course the class tensions between landlord and commoner, have remained.

The commons always contains both subject and object. The subject of the commons is always a commoner, the one whose need is being provided for. The object can be all sorts of things, a green space, a fish, a branch of wood, water for drinking or watering. But this dynamic is also a historic and legal one, set specifically in order to provide limited compensation for the shortcomings of feudal ownership. Laws which describe common land have never been fully protective of those who need them. To avoid future capture by both powerful landlords and corporate privatisation, the commons requires the continued retelling of its own histories. Defence of the commons must be kept alive both through physical acts of resistance and remembrance and through writing and speaking about its importance.

"The commons, as both a physical space and a concept of shared resources, has always been contested by those who seek to profit financially through the prevention of free access."

At a time when the king owned everything and gifts were given in the shape of commons, it was not the whole land itself that was offered, but the freedom to access or lease it. In the 1319 Bruce charter, the Forest of Stocket in Aberdeen, for example, was kept by Robert the Bruce solely for "the green growth of the great trees and the game", while otherwise gifting the use of these lands to the people. Gifts tend to create a dynamic of reciprocity. In this case, the forest was given in thanks for the people of Aberdeen’s loyalty to King Robert and allowed for the creation of the Common Good fund which is still in existence today.

Most commons are spaces with edges like this: they require a specific practice of beating the bounds, where commoners would walk the perimeter with willow wands to delineate common from private and hold onto what was shared. Rivers are therefore a bit more of an uncertain commons, especially that of the Tweed which flows along and across the current boundary between two countries.

The commons as both a physical space and a concept of shared resources, has always been contested by those who seek to profit financially through the prevention of free access. In his paper ‘The Tragedy of the Commons’ in 1968, Garrett Hardin, an influential ecologist and later director of the American Eugenics society, made the right-wing argument that commons could not hold in the new global capitalist economy. He argued that we should accept privatisation and the generated private wealth from enclosure, since poor and indigenous folk could not be trusted to manage resources amongst themselves. Such falsehoods shaped contemporary Western neoliberal positions on privatisation for decades.

Political economist Elinor Ostrom wrote against Hardin’s neoliberal position in her book Governing the Commons in 1990 by defining common pool resources around the world where, in fact, the sharing of land and water took place fairly and successfully against Hardin’s backdrop of aggressive expropriation. The same year, this position was echoed in New Enclosures from the Midnight Notes Collective, a group of Marxist philosophers and historians including George Caffentzis, Peter Linebaugh and Silvia Federici, linking contemporary forms of enclosure with those of the feudal era.

"Today's commons is a latent commons, which relies not only on law but on active and political participation by communities."

As the commons has continued to transform, so too has the struggle between enclosure and resistance. Reflecting on the protests against the World Trade Organisation of late 1999, the journalist Naomi Klein wrote the article ‘Reclaiming the Commons’ in the New Left Review (2001) on the fightback against forms of expropriation of resources such as drinking water by international companies in the Global South. Around this time the Coca-Cola Company had begun to commodify water from aquifers in India, using three litres of water for every one litre of Coke produced. In the year 2001, we also saw the definition of Creative Commons as a form of digital sharing, which spread the notion of commons into the digital realm.

In these early years of the 21st century the idea of commons as a specific place completely broadened to cover many different forms of resource. We might think of commons as including air, water, land, seeds, data and knowledge. This extension of the concept has allowed for a productive reconsideration of contemporary enclosures, but also highlighted the importance of historically existing commons which might otherwise be lost to privatisation.

If we consider the commons as something which offers agency to individuals where the situation would otherwise be that they had none, then what specifically is there about a river which could be in common? The Magna Carta and the Charter of the Forest set out the provisions for commons both in this country, and in countries which were colonised through slavery. When we look back to it, we are recalling a historic dynamic of ownership that is pre-capitalist.

The simplest definition we can use for a commons is a resource which fulfils the need of a community, and has no existing financial value. It should be completely free. It needn’t be open to everyone, but it does need to be open to that specific community of need. Rules are considered to be key to the management of commons to avoid misuse or overuse, so the position of openness is always particular to a specific group. In his 1998 book, Communitas, political philosopher Roberto Esposito reminds us that this convention goes back even to the etymology of the word ‘common’, coming from the Latin noun, munus, which is described both as ‘gift’ and as ‘duty’. All users of the commons are responsible to the commons.

That puts us in a slightly tricky position with regards to considering our watery commons. The River Tweed is not a commonly shared resource in the sense that Elinor Ostrom would have considered it. Whilst walking access is being improved around it, fishing rights are privatised, and both sewage and fertiliser run-off can pollute the water. So, what possibility for commons might a place like the Tweed hold?

In the current day, we are often faced with trying to see the commons within a landscape that doesn’t quite allow for the full embodiment of its politics of sharing. This is where Anthropologist Anna Tsing’s term, Latent Commons, can help us consider some imperfect contemporary versions of commons. In her 2015 book, The Mushroom at the End of the World, Tsing uses the example of the Japanese Matsutake mushroom, which only grows in areas of disturbed ground. Community groups band together to manage the forest in order to encourage the growth of these mushrooms which are a rare sought-after variety. Leaving the land alone precludes the existence of these treats, and so an imperfect commons of mushroom encouragement has developed.

Following from this, we might consider today’s commons as a compromise with the past. Aspects of feudalism still abound in our daily lives despite our existence within a late capitalist economy. Hereditary ownership still passes on ‘landed’ estates, and the crown own the foreshore for the 12 nautical miles around the British Isles. If a river is not necessarily a commons, what can we consider to be a watery commons? One way to think around this is that perhaps we are not the only subjects of the commons after all. The position of the individual in need who requires access to the commons for sustenance has always been shaped around human need, and nature exists to serve them.

What if we think about our watery commons as those which don’t just exist to serve human need, but to include the subjectivities of non-human beings too? In order to extend our existence on a rapidly warming planet, initiatives to improve riparian zones, forests which exist alongside burns and rivers, have become vitally important. These areas not only provide a home for birds, animals and insects, but actively cool and clean the atmosphere around them. It is vital that we continue to protect and manage the commons around us not only for our own enjoyment, but for the health of the planet and the continuation of species which rely on these spaces even more than we do.

In this instance our commons is also that of the otter, the kingfisher, the bee fly, of bryophytes, beetles and hemlock. It is not a perfect commons that exists only for our community and our need for access to wild and green space. It is a latent commons, and one which relies not only on law but on active and political participation by communities to continue to exist. It is with this fundamental compromise that we might continue to dwell with and work towards a watery commons.

Emma Balkind is from Glasgow. Her PhD ‘Estovers: Practice based research on the concept of the commons within contemporary art’ is from Glasgow School of Art. She taught the course ‘What is the commons?’ at the University of Edinburgh. Emma is currently training as a Data Analyst with The Open University.

All images by Georgie Fay.
Georgie is a participatory artist and printmaker based in Scotland. At the core of her artistic vision is a search for place and connections, in landscape and history. Georgie is also one of the six Connecting Threads artists in residence for 2025, under the overall theme of Watery Commons.
www.georgiefay.com | @georgiefayart