THE COMMONS USUFRUCT LAW
by
Chris Maser

In the giant process of evolution, relationships among things are in constant flux as complex systems arise from subatomic and atomic particles. In each higher level of complexity and organization, there is an increase in the size of the system and a corresponding decrease in the energies holding it together. Stated differently, the forces that keep evolving systems intact, from a molecule to a human society, weaken as the size of the systems increases, yet the larger the system the more energy it requires in order to function. Such functional dynamics are characterized by their diversity as well as by the constraints of the overarching laws and subordinate principles that govern them.

I say these principles govern the world and our place in it because they form the behavioral constraints without which the global commons could not function in an orderly manner. In this sense, the Law of Cosmic Unification—the supreme law—is analogous to the Constitution of the United States, a central covenant that informs the subservient courts of each state about the acceptability of its governing laws. In turn, The Commons Usufruct Law represents the state's constitution, which instructs the citizens of what acceptable behavior is within the state. In this way, Nature's rules of engagement inform society of the latitude whereby it can interpret the biophysical principles and survive in a sustainable manner.

The Law of Cosmic Unification is derived from the synergy of three universal laws:  the first law of thermodynamics, the second law of thermodynamics, and the law of maximum entropy production. The first law of thermodynamics states that the total amount of energy in the universe is constant, although it can be transformed from one form to another. Therefore, the amount of energy remains the same, even it if you could go forward or backward in time. For this reason, the contemporary notion of either "energy production" or "energy consumption" is a non sequitur. The second law of thermodynamics states that the amount of energy in forms available to do useful work can only diminish over time. The loss of available energy to perform certain tasks thus represents a diminishing capacity to maintain order at a certain level of manifestation (say a piece of firewood, natural gas, coal, geothermal, electricity), and so increases disorder or entropy. This "disorder" ultimately represents the continuum of change and novelty—the manifestation of a different, simpler configuration of order, such as the remaining ashes from a piece of firewood when it is burned. In turn, the law of maximum entropy production says in essence that energy will escape from a system by the fastest means possible.¹

Earth, for example, has been exposed for billions of years to a constant flow of energy streaming from the sun and radiating back into space. On Earth, the flow of energy produces the vast variety of living systems, from a unicellular organism to a human society. Thus, every biological system must develop the ability during its evolution to constantly balance the energy it uses to function with the energies available in its environment. Ecosystems and social systems, like organisms, constantly bring in, break down, and use energy not only for repair but also for regeneration and to adapt to changing environmental conditions. In turn, each provides fuel to others, but in a simpler form than it initially used.

The essence of maximum entropy simply means that, when a particular constraint is removed, the flow of energy from a complex form to a simpler form speeds up to the maximum allowed by the relaxed constraint.² Clearly, we are all familiar with the fact that our body loses heat in cold weather, but our sense of heat lost increases exponentially when wind chill is factored into the equation, because our clothing has ceased to be as effective a barrier to the cold —constraint to the loss of heat —it was before the wind became an issue. Moreover, the stronger and colder the wind, the faster our body loses its heat —the maximum entropy of our body's energy whereby we stay warm. In other words, systems are by nature dissipative structures that release energy by various means, but inevitably by the quickest means possible.

At it turns out, the law of maximum entropy production freed early hominids from one of the basic constraints of Nature when they adapted the intense entropy of burning wood to their everyday use. (A hominid, hom•in•nid, is any of the modern or extinct primates that belong to the taxonomic family Hominidae, Hom•in•idae, of which we are members.) The control of fire gave hominids the ability to live in habitats that heretofore had been too cold or the seasonal temperature variations had been too great. It also allowed them to cook food, making parts of many plants and animals palatable and digestible when they were baked, roasted or boiled. As it turns out, the charred remains of flint from prehistoric firesides on the shore of an ancient lake near the river Jordan in Israel indicates that our ancient ancestors had learned how to create fire 790,000 years ago.³ Moreover, the increased supply of protein embodied in cooked meat it is thought to have facilitated the evolution of the increasing hominid brain capacity, ultimately leading to our mental abilities.⁴

Beyond that, according to Rod Swenson of the Center for the Ecological Study of Perception and Action, Department of Psychology, University of Connecticut, the functional melding of these three laws of thermodynamics,"are special laws that sit above the other laws of physics as laws about laws or laws on which the other laws depend."⁵ In other words, these three laws of physics coalesce to form the supreme Law of Cosmic Unification, to which all biophysical and social principles governing Nature and human behavior are subordinate-yet simultaneously inviolate, meaning we manipulate the effects of a principle through our actions, but we cannot alter the principle itself.⁶

Just as the cosmos has a supreme Law of Cosmic Unification, the commons has a similar unifying construct that can be thought of as The Commons Usufruct Law. "Usufruct" is a noun from ancient Roman law (and now a part of many civil-law systems) that means one has the personal right to enjoy all the advantages derivable from the use of something that belongs to another, provided the substance of the thing being used is not injured in any way.⁷ In Canada, for example, the indigenous First Nations people have a usufructuary right to hunt and fish without restriction on Crown lands. In a more industrialized setting, a farmer might rent an unused field to a neighbor, thus enabling that neighbor to sow and reap the harvest of that land or, perhaps, to use it as pasture for livestock.⁸ On public rangelands in the western United States, the latter arrangement between the federal government and a local rancher is known as a grazing allotment.

The legal definition of usufruct in the United States is:

Usufruct is a right in a property owned by another, normally for a limited time or until death. It is the right to use the property, to enjoy the fruits and income of the property, to rent the property out and to collect the rents, all to the exclusion of the underlying owner. The usufructuary has the full right to use the property but cannot dispose of the property nor can it be destroyed.

The extent of usufruct is defined by agreement and may be for a stated term, covering only certain stated properties, it could be set to terminate if certain conditions are met, such as marriage of a child or remarriage of a spouse, it can be granted to several people to share jointly, and it can be given to one person for a period of time and to another after some stated event occurs.⁹