Keen on researching law

I became interested in research relatively early, because I worked on a fascinating land rights case in Australia as a research associate to the High Court of Australia right after graduating. We were able to meld the doctrinal question, which was open-ended, with this incredible multi-layered history of the politics and moral dimensions … well, not explicitly the moral dimensions, but obviously implicitly. That was a really exciting year that led me to become keen on researching law.

Human need and human right

I have avoided working on human rights. I started my career being interested in the administrative state and I still think this is an essential part of my focus. I got interested in the basic question of human need more than human right. I was interested in governing and the way cost-benefit analysis infused governing and seemed to dominate the process of law making so much more than ethical and moral discussions. But I didn’t see the response to that as necessarily centred in human rights.

Right to water as a site of activism

I almost stumbled across the whole human right to water debate. At first, I wondered: how do you make real a human right to water – it seemed almost a category mistake. To me it was more the outcome of a set of regulatory frameworks and economic decisions that created access to water services. Of course, there are still relevant debates about environmental rights in general. This created a path into the current work, because the human right to water got deployed sociologically in practice, and really that was always my interest … the socio-legal instantiation of these things rather than the doctrinal life.

The right to water was more exciting to me as a site of activism than as a legal tool. So I studied the social movement dimensions around the human right to water. I still think those rights discourses are fascinating in that respect … the way they animate activism. But it was while I was doing that … I guess two things happened … one is I got a bit disillusioned with the fact that the activism would run out into almost a form of paralysis once it came into contact with this complex economic and regulatory framework that made urban water services possible. And it was the same for transport and to some degree for providing food. It just felt to me that the discourse of human rights didn’t tangle in productive ways with those regulatory frameworks.

Designing enterprise to address rights concerns

But I noticed that people were starting to innovate and come up with designs around enterprise that were addressing those concerns that the rights activists had. They were inventing new forms of business from the ground up, ones that were really responding to the values and visions held by the people fighting for the right to water. One example is a community-owned cooperative for water services that was set up in Cochabamba, Bolivia, which is one of the case studies I did many years ago on water services.

That shared ownership structure over that cooperative seemed to me much more vital to the question of the human right to water than the United Nations General Comment No. 15 with all its detailed provision … I’m not saying that’s not important. That’s just my interest … enterprise design and the legal issues that it entailed. I don’t think I appreciated at the time how much that would take me into the domain of private law and I found myself on that turf without the training … really we had gone quite separate ways, in many ways public lawyers and private lawyers. It’s been an interesting journey and I still explore those interests in social enterprise and solidarity economies more through a socio-legal and social-scientific perspective than through a directly private law approach.

Practical, professional, ethical and moral

I am motivated by the idea that I can work on things that are presented as technocratic and professionally distanced from immediate ethical debates, by tying them back to ethics while still keeping them useful in a professional sense as a set of institutional frameworks that people can deploy without getting into political arguments at every step of the way. That’s really attractive to me. It’s like this line of work provides a way of working together in a form that is practical and professional and action-oriented, but without avoiding the ethical and moral questions that arise from that activity. It gives space for channelling economic and organisational design questions through some sort of human rights framework, which I worry is often side-lined at the end of the day by economic policy decisions. Not entirely, but there is a tendency for economic policy to pay attention to human rights after the core analysis, to address it as a second order question.

New legal models of social enterprise

I work a lot with stakeholders and networks outside the academy. I help work on the details of new legal models of social enterprise. In Australia there is a particular legal gap. There isn’t anything available… there is a cooperative legal form, which is actually really useful but it happens to be at state level. If you want to create a company that operates across state borders, which most people do, then it’s not easy to do that despite national collaboration on cooperative legal frameworks. There is growing interest in the technical legal details of the question: what does a cooperatively governed social enterprise model look like? That’s not a purely doctrinal question, but it’s very practical.

At a much broader level, often the practical work I am doing with outside networks is about helping to craft a broader narrative about ethical economies or community economies or solidarity economies. I want to help create and feed into a set of conversations where people have a common language for talking about something across different professional sets of expertise. And I feel like that’s more my socio-legal side.

Beyond the technical legal detail

I think that lawyers can be – and ought to be but often aren’t – good at seeing a bigger picture without losing touch altogether with the practical detail of how that will work on the ground. I always tell my students that. If you can get your head out of the technical legal detail and look across the institutional landscape, your legal training will help retain that quite grounded sense of ‘how will this work in practice’. You are not like marketing people that may keep painting a vision, driven by attachment to future sales. That doesn’t help – we need new institutions, not new markets.

Imagining different ways for economic transactions and organisations

I ended up, through the research I did in Australia, helping to co-found an actual cooperative in Australia called the ‘New Economy Network of Australia,’ which is a legally incorporated cooperative which does this work in catalysing conversations about different forms of economic design. It’s about diversity in enterprise design and a reimagined ecosystem for them to flourish within - different ways of imagining economic transactions and organisations and practices that establish a greater priority for social and environmental goals, going well beyond corporate social responsibility. And there is a new organisation called the Sydney Commons Lab (see also SCL Facebook page) which I am now involved in at city level. Trying to get those conversations going from city to nationwide to cross-national is important. There is a real appetite for it at the moment in the wake of systemic crisis and the openings for change that are emerging.

The importance of exploring local initiatives in detail

I also like to ask: can what you do and what you research at a very local level be as relevant to what’s happening cross-nationally as something that’s overtly international? A lot of students, when they initially become interested in research, they quite frequently are drawn to these global topics that are inherently transnational and cross-border in design.

But I more and more feel like it is really important to explore local initiatives in detail, and then connect that to the study of other local initiatives in their own context, and explore ways to connect them at the micro-level. By the time you get to making a treaty between states,  you have established so many complex layers, dialogues, conversations and consensus-practices across borders and between established networks and professional groups and so on. You couldn’t have the treaty conversation unless and until you’ve built all those other levels, and they lock in so many established ways of doing things that need now to shift. And therefore, in order to see a way through to deep innovation and reimagining of something as basic as how we design economic interchange, you have to start at the local level. And then join those dots up.

Exploring sites of legal pluralism

What I like about the socio-legal approach is that you can start to study the patterns that emerge with these local experiments before their participants engage in detail with formal legal questions. I see the research I have been doing as a form of looking for sites of legal pluralism. People are doing things which might not fit any legal category, but unless and until that engages some other set of people who get sufficiently upset that they actually take it into a formal channel – until then, it is an experiment in legal pluralism.

One of the analogies is to look at the big platform companies who did this much faster, because they operated at scale so fast. When Uber started out, it quickly became clear that what they were doing didn’t fit into transport regulation in any neat way. We are still struggling with that, all the different local legal responses to that. They’ve upped the stakes of that so fast by expanding worldwide. The logic of solidarity economies is always more locally embedded and ethically committed to that local entanglement. There isn’t that impulse to go global in quite the same way with most of the experiments I am interested in – and my interest is precisely in that experimental dimension, the way it doesn’t fit the legal categories it is seemingly engaging with. That’s what is to me, and it challenges our assumptions as it evolves about the relationship between law and society.

Moving towards cosmo-localisation

One of the questions that has opened up right now with Covid is that we need to be able to build something that is locally embedded but still internationally energised. No one wants to let go of the global networks that have been built, but we could relate to them very differently. A useful notion is cosmo-localisation which is a term Jose Ramos, Michel Bauwens and other writers have developed. The idea is that what is light (eg knowledge, design) becomes global, whereas what is heavy (machines, manufacturing) is local and ideally structured through shared ownership. The tag line says that you do the heavy stuff locally and the light stuff internationally. So you relocalise manufacturing and production, but you retain those global networks around standards, legal frameworks or anything to do with knowledge bases. Then you continue to share and compare local experiences: generating productive dialogue about how these different local experiments work in their settings. You ask: what are the conditions that make them capable of being replicated in a locally sensitive manner that continues to pay priority to social and environmental aspects of that local setting?

The answers draw on a combination of bio-regional governance, localised manufacturing and globalised knowledge frameworks. This is really possible, really exciting and full of potential, but it’s not the way we tend to think now. We tend to presume an economic infrastructure which is built on international trade and multinational economic activity operating with a different set of pre-suppositions about how to balance economic, social and environmental values. If we alter the value balance, redesign the enterprise form in more cooperative shared ways, and open up the educational lines of conversation, then we can build livelihoods that are both locally embedded and internationally oriented. In other words, building deep relationships in research and teaching terms with our local environment and communities can still be a strong foundation for global dialogue, not a parochial retreat. I don’t know how we will build international travel on top of that – in the context of Covid, that is the tricky part at the moment and who knows where it will go. But the important thing is that we keep ourselves open to not feeling we have to reconstruct what we had before this crisis – finding the energy for systemic redesign of many aspects of our old lives, that’s what seems to me energising.

Bronwen Morgan is Professor of Law at UNSW Law. She gave an SGEL guest lecture entitled 'Platform Cooperativism, Community Economies and Law.'