Radical Transactionalism: Legal Consciousness, Diverse Economies, and the Sharing Economy
| Author | Bronwen Morgan,Declan Kuch |
| Published date | 01 December 2015 |
| Date | 01 December 2015 |
| DOI | http://doi.org/10.1111/j.1467-6478.2015.00725.x |
JOURNAL OF LAW AND SOCIETY
VOLUME 42, NUMBER 4, DECEMBER 2015
ISSN: 0263-323X, pp. 556±87
Radical Transactionalism: Legal Consciousness, Diverse
Economies, and the Sharing Economy
Bronwen Morgan* and Declan Kuch*
This article proposes an original theoretical approach to the analysis
of community-level action for sustainability, focusing on its troubled
relationship to the sharing economy. Through a conversation between
scholarship on legal consciousness and diverse economies, it shows
how struggles over transactional legality are a neglected site of
activism for sustainability. Recognizing the diversity of economic life
and forms of law illuminates what we call `radical transactionalism':
the creative redeployment of legal techniques and practices relating to
risk management, organizational form, and the allocation of con-
tractual and property rights in order to further the purpose of inter-
nalizing social and ecological values into the heart of economic
exchange. By viewing sharing-economy initiatives `beyond Airbnb and
Uber' as sites of radical transactionalism, legal building blocks of
property and capital can be reimagined and reconfigured, helping to
construct a shared infrastructure for the exercise of collective agency
in response to disadvantage sustained by law.
INTRODUCTION
The `sharing economy' has risen to prominence in recent years as recession,
outsourcing, environmental depletion, and alienation drive workers and
consumers into new forms of economic action. As a catch-all term, it has
556
*UNSW Faculty of Law, UNSW Australia, Sydney NSW 2052, Australia
b.morgan@unsw.edu.au d.kuch@unsw.edu.au
We are particularly grateful to the anonymous referees whose comments have greatly
assisted with significant revisions to earlier versions. The research project on which the
article draws, entitled `Between social enterprise and social movement: responses to
environmental change at the intersection of rights and regulation', was generously funded
by the Australian Research Council under Future Fellowship Research Fellowship
FT110100483.
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School
captured the imagination of the mainstream press.
1
In these popular
accounts, the understanding of what the `sharing economy' entails is rela-
tively narrow, focusing on ways in which information technology is used to
empower individuals or organizations to distribute, share, and re-use excess
capacity in goods and services. The substantive focus is equally narrow,
often focusing on pitched regulatory battles between incumbents in the taxi
and hotel industries and their respective `sharing' challengers such as Airbnb
and Uber, or on the large amounts of venture capital being offered to these
types of initiatives. Indeed, the business models and profit margins of these
kinds of initiatives have led many to critique what Dan Gregory calls the
`narrow confines of extractive institutional models that focus ruthlessly on
exchange value'.
2
Yet the notion of a sharing economy, as the phrase itself
suggests, has connotations that are more nurturing and generative than
extractive, as reflected in the subtitle of Janelle Orsi's pioneering book on
Practising Law in the Sharing Economy: `helping people build cooperatives,
social enterprise, and local sustainable economies'.
3
These tensions are very much at the centre of this article, the key purpose
of which is to explore the implications of the rising interest in the sharing
economy for the role of law and lawyers. We make two interventions that we
suggest provide a framework for debate about this role. First, we emphasize
the plural visions of the sharing economy circulating in current debates.
These plural visions grapple with the question of whether sharing-economy
discourses tend to perpetuate an extractive mindset rather than nurturing new
social and democratic possibilities. We stress the importance of under-
standing the `sharing economy' as a site that includes community-based
sustainability initiatives and grass-roots innovations that mix elements of
activism and enterprise.
Second, we interrogate the motif often attributed to the sharing economy,
that access rather than ownership is central to emerging innovations.
557
1 NPR, `Special Series: The Sharing Economy: A Shift Away from Ownership' (2013),
at org/series/24458 3579/the-sharing-e conomy-a-shift-aw ay-from-
ownership>; `The Rise of the Sharing Economy' The Economist, 7 March 2013, at
sharing-economy>; M. Newlands, `The Sharing Economy: Why It Works and How to
Join' Forbes, 18 July 2015, at
the-new-sharing-economy/>; B. Walsh, `10 Ideas that Will Change the World' Time
Magazine, 17 March 2011, at tp://content.tim e.com/time/special s/packages/
article/0,28804,2059521_2059717,00.html>.
2 D. Gregory, `There is No Such Thing as Capitalism' Stir Magazine, August 2014. The
concept of extraction, as we use it, refers to a mindset and approach to human
relations that enables commodification and exchange by securing the socio-legal
boundaries of groups or individual activities in ways that facilitate the monetization
of those activities. For example, Uber's app collects user data via their smart phone so
as to extract the maximum value out of their demographic and travel data.
3 J. Orsi, Practising Law in the Sharing Economy (2012).
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School
Botsman and Rogers
4
have popularized this motif, breaking it down into four
underlying principles that we use to structure our later argument: trust
between strangers, a belief in the commons, idle capacity, and critical mass.
Through this interrogation, we propose instead that ownership remains much
more central than the motif suggests, and that shared infrastructure is what
matters. We chart four lines of enquiry that can help to frame future research
about this question of shared infrastructure. We bring these two interventions
together by pr oposing a conve rsation betw een literatu re on diverse
economies and legal consciousness. This conversation provides a bridge
between our two interventions, in deference to the ongoing empirical open-
endedness of sharing economy trajectories. It helps explain how sharing
economies understood as practices of constructing shared infrastructure can
foster a collective sense of agency in response to disadvantage sustained by
law.
Part I of the article explores the potential to view the sharing economy in
terms of activism, stressing the plural imaginaries inherent in the way
different groups in social media discuss the concept. This allows the reader
to envisage what is at stake in debates about the sharing economy, which we
think is important before filtering those debates through any particular set of
scholarly literature.
In part II, we provide just such a scholarly filter, working through
literature on diverse economies and on legal consciousness and `everyday
law'. Bridging these two areas brings something to each. Legality is a
neglected facet of debates about the social economy and its relationship to
the market economy, especially beyond law and society literature. And the
diverse forms of economic life are a neglected facet of legal consciousness
literature, in particular in the way they illuminate transactional legalities
rather than the more familiar legalities embedded in public law, social
welfare, and human rights that often dominate law and social change
literature.
In part III, we explore the emergent `everyday law' of sharing-economy
initiatives by linking Botsman and Rogers's four elements of a collaborative
economy with the diverse legalities of preventing harm, negotiating a blurred
line between gift and contract, and choosing a legal entity structure for a
project, initiative or enterprise. Taken together, these diverse legalities
provide a framework for further research on the sharing economy that we
articulate as a question of shared infrastructure. We conclude overall that
shared infrastructure should be imagined through experimentation with
ownership and control in ways that are open to a more diverse array of
economic possibilities than neoliberal regulatory frameworks suggest is
possible. We stress the potential for lawyers to foster diversity in economic
558
4 R. Botsman and R. Rogers, What's Mine Is Yours: The Rise of Collaborative
Consumption (2010).
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School
life through `radical transactionalism', where legal building blocks of
property and capital can be creatively deployed to provide a foundation for
new social and democratic possibilities.
I. SHARING ECONOMIES: PLURAL IMAGINARIES
As indicated, this article seeks to go beyond the narrow conceptual and
substantive preoccupations of popular current understandings of the sharing
economy. We would draw the net of this evocative notion more widely, in
particular to include community-based sustainability initiatives that emerge
as creative responses to resource depletion and climate change. Some
sharing-economy initiatives, such as car-sharing, co-working, and many
reuse projects, use web-based technology to enable `access rather than
ownership'. Others, especially in the energy and food sectors, focus on
connecting consumers much more closely with producers and stressing the
social nature of those ties, even while they also use technology to sidestep
intermediaries such as supermarkets or large energy companies. Collec-
tively, they go beyond the narrower understandings of the sharing economy
that often dominate popular media accounts, and more towards a vision of
renewed forms of collective urban life. These are what Seyfang and Smith
5
term `grassroots innovations':
networks of activists and organisations generating novel bottom-up solutions
for sustainable development; solutions that respond to the local situation and
the interests and valu es of the communities inv olved. In contrast to
mainstream business greening, grassroots initiatives operate in civil society
arenas and involve committed activists experimenting with social innovations
as well as using greener technologies.
The emphasis on civil society, activism, localism, and community is, as we
shall see, somewhat in tension with emerging understandings of the `sharing
economy'. Yet, sharing-economy initiatives have, and continue to, draw on
such associations even while they also enact and rely on much more
extractive modes of `business-as-usual'.
In contexts as diverse as community-supported agriculture, community
energy projects, car-sharing, co-working, and reuse/recycle initiatives, plural
versions of the sharing economy exist. Ordinary people, perhaps frustrated
with the inertia of government policies and large-scale corporate routines
and practice, are experimenting with different ways of moving around,
powering themselves, securing food, and earning a living, making these
transactions less wasteful and potentially more social. These initiatives
challenge well-worn dichotomies between public and private spheres, state
559
5 G. Seyfang and A. Smith, `Grassroots Innovations for Sustainable Development:
Towards a New Research and Policy Agenda' (2007) 16 Environmental Politics 584.
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School
and market forms of governance, and economic and social objectives. Their
practices often mix elements of activism and enterprise, sometimes uneasily.
Some view enterprise as the vehicle for realizing activist objectives; others
view the two as mutually reinforcing. These practices recognize, in different
ways, an ethics of a community economy grounded in what Gibson-Graham
describe as `a need to modify ourselves, to become different, and more
specifically [to develop] the capacity to enact a new relation to the
economy.'
6
1. Beyond Airbnb and Uber
Some of the current debates around the sharing economy, especially in the
mainstream business press, tend to assume that its participants share the
same extractive mindset as when they buy or sell other services. This
assumption elides the social and democratic possibilities of sharing. Thus,
proponents of an extractive sharing economy point to new possibilities for
`consumption, productivity, unlocking capital and `micro-entrepreneurs':
the emerging peer-to-peer, collaborative `sharing economy' will be a signifi-
cant segment of the country's future economic activity, stimulating new
consumption, raising productivity and catalyzing individual innovation and
entrepreneurship . . . The economic engine at work here is an array of new
peer-to-peer marketplaces that unlock dormant physical capital (real estate,
vehicles, household assets) and put it to productive use, creating, in the
process, a wide variety of new consumption experiences (contrast the modest
range of hotel rooms with the diversity of Airbnbs), and catalyzing innovation
by micro-entrepreneurs who can dip their toes into the world of small business
unimpeded by the risks of an all-or-nothing start-up.
7
From an investment perspective, collaborative consumption platforms have
become new potential sites of securitization and financialization. Thus, news
of ride-sharing firm Lyft taking on Uber with a new round of capital raising
appears alongside more traditional business stories in the Wall Street
Journal; Airbnb is subject to capital market valuations, whilst walking a
tightrope of making hosts into both micro-entrepreneurs and appropriately
friendly participants in a far-reaching social network.
The stretching of individual consumers into vendors of accommodation,
drill rental businesses, and micro car-rental entrepreneurs coexists, often in
tension, with other versions of the sharing economy. Janelle Orsi, for
example, stresses the importance of non-corporate approaches, arguing that:
Botsman's definition of `sharing economy' [idling capacity, innovation etc.] is
noticeably more narrow than how many people have been using the phrase. It
560
6 J.K. Gibson-Graham, `An Ethics of the Local' (2003) 15 Rethinking Marxism 49.
7 A. Sundararajan, `Trusting the Sharing Economy to Regulate Itself,' Economix Blog,
NY Times (2014), at
sharing-economy-to-regulate-itself/ >.
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School
doesn't seem to include shared governance, cooperative work, shared informa-
tion, crowdsourcing, crowdfunding, collective activity, community-building,
the commons, cooperative ownership, and many other activities that have been
described under the umbrella of `sharing economy'. I prefer a broader
definition because I think it has been helpful in tying these many activities
together as part of a movement to create a world where everything is more
equitably shared . . .
8
The politically open-textured nature of the concept of the sharing economy
can be illustrated visually, by charting competing uses of the sharing
economy online. Using online network tools, one can demonstrate the partial
appropriation of the concept of the `sharing economy' by economists and
investors. Figure 1 is a network graph of tweets from 14 to 17 March 2014
that included the hashtag
9
#sharingeconomy.
Figure 1 shows the divergent uses of the term #sharingeconomy in this
short period of time: clusters can be clearly identified. The cluster on the
bottom left mainly tweeted an article from Shareable.net about mapping the
growth of new mutual organisations, a perspective that speaks to a growing
number of online debates about commons-based approaches to the sharing
economy.
10
The cluster on the bottom right is based around an article by
Jeremy Rifkin arguing that lowering of marginal production costs is both
responsible for and will inevitably lead to a rise in sharing-economy initia-
tives, framing this in terms that echo institutional economics. Capitalism, for
Rifkin, is a victim of its own successes as certain gifts subsume prices. This
is creating a `third industrial revolution' where markets must be remade
along the lines of collaborative consumption to allow monetized sharing
where gift economies have not taken hold.
11
The top right-hand cluster
centred around the Airbnb node is composed of a number of unreflexively
enthusiastic collaborative consumption articles. They mostly celebrate
Airbnb on its own terms, implicitly communicating an enthusiasm for
Hayekian self-organizing spontaneity. The nodes of these clusters are
relatively discrete, showing little dialogue on twitter between extractive
proponents and generative proponents of the term.
12
561
8 See comments in R. Botsman, `Sharing Economy lacks a shared definition' (2013), at
definition>.
9 Hashtags are user-generated aggregation devices to allow other users to search related
interests and follow issues. Data for this graph is from a scrape of some 630 tweets
between 14 and 17 March 2014 with some spammy/automated tweets cleaned and
low centrality vertices removed.
10 K. Stokes et al., `Making Sense of the UK Collaborative Economy' (2014), at
www. nes ta. org. uk/ sit es/d efa ult /fil es/ mak ing_ sen se_ of_t he_ uk_ coll abo rat ive _
economy_14.pdf>.
11 J. Rifkin, The Third Industrial Revolution: How Lateral Power is Transforming
Energy, the Economy, and the World (2011).
12 The fringe dots are potentially interesting connectors, albeit idiosyncratic. They are
mainly `retweeters' who pass on the article URL to their own followers. `New Age'
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School
562
Figure 1. Network graph of high centrality tweets containing #sharingeconomy
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School
Network analysis of the way that the concept of the sharing economy is
used, then, demonstrates its significant political malleability: there is no
inevitability that the political trajectory of the sharing economy will end up
as a new form of neo-liberalism. Indeed, to assume such inevitability would
be to overstate the intentionality and design in constructing the family of
concepts that has sanitized our corporate imagination. Weber warned that the
Iron Cage would descend upon us through unintended consequences as much
as routinized, calculative planning. Greta Krippner's
13
exemplary study of
the financialization of America in the 1970s emphasizes policy expediency,
rather than power politics or ideological battles as typically conceived in
much analysis of the role of neoliberalism. The unity and coherence of the
sharing economy should not be overstated, and just as some plumb history
for an appreciation of the diversity of corporate forms,
14
we open up below
the conceptual underpinnings of plural sharing economies.
2. The legal framework of the sharing economy: regulatory policy or
transactional law?
A narrow conception of transactional possibilities underlies much of the
public debate about sharing. This is one reason that policy interest in the
sharing economy has become an overt flashpoint of debates, certainly in
popular media accounts on the blogosphere and in think-tanks like Nesta.
Slowly these debates are also becoming the stuff of government enquiries. In
many of these settings, however, there is a tendency to frame the legal and
policy issues raised by the sharing economy in all too familiar terms, as a
problematic of regulation in which the debate is focused on an appropriate
balance be tween compe titivene ss and consum er protect ion alongs ide
anxieties about the misuse of regulatory pr otection by self-interested
incumbents. For example, Professor of Economics Stephen King recently
justified `getting rid of regulation' as `an improvement to the economy, as
there will be growth, there will be more jobs, there will be better utilisation of
capital.' He also questioned whether there is `an obligation to look after the
incumbents'
15
warning that `they're not going to take this stuff lying down'.
16
Arun Sundararajan's recent testimony to a United States Congressional
hearing on Peer-to-Peer Businesses warns that:
563
may be the common denominator in the sense that the information `brokers' across
these different articles are a prolific Portland-based newswriter, a communications
worker at a meditation centre, and a Yoga Association in the United Kingdom.
Perhaps New Age aptly reflects the ideological messiness of this space.
13 G. Krippner, Capitalizing on Crisis (2011).
14 M. Vatter, `Un-Limited and Un-Incorporated. From Corporation to Common by Way
of Trust' (2013) 3 Filosofia Politica 447.
15 Anon, `Regulating the Peer-to-Peer Economy,' Grattan Institute debate (2015), at
16 id.
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School
The current regulatory infrastructur e can impede the growth of these
businesses, in part because of misalignment between newer peer-to-peer
business models/roles and older guidelines developed to mitigate safety
concerns and economic externalities for the existing ways of providing the
same or similar services.
17
Meanwhile, the United Kingdom government's response by the Department
of Communities and Local Government to promoting the sharing economy
to aid affordability issues with rented housing in London lamented that
`thousands of listings [on Airbnb, Gumtree and Onefinestay are] potentially
in breach of . . . outdated laws.'
18
But law is important in a much deeper way than the question of `how to
regulate the sharing economy'. It is much more than an infrastructure of
repression and denial, risk and mitigation. Framing the debate as a standard
question of regulatory technique misses a vital opportunity to probe more
deeply into how we understand the role of law ± and lawyers themselves ± in
opening up the pathways of the sharing economy. It misses the opportunity
to reframe exchange itself, to weave social and ecological values into the
heart of exchange, rather than bolting them onto the edifice of commercial
exchange as a protective afterthought. We capture this effort to weave social
and ecological values into the very heart of exchange with the term `radical
transactionalism'. Instead of tired debates about red tape, special-interest
politics, and regulatory overload, we should try, in Will Davies's
19
words, to
`extend the liberating elements of productive capitalism into the social
realm', in ways that recognize that no matter how creative or visionary the
political and social vision of a pioneer in the sharing economy, the
`regulatory and legal tramlines that have already been laid down' will need
to be re-imagined. Radical transactionalism is a set of practices that make
explicit just such a re-imagining. Janelle Orsi, for example, a pioneer in
developing legal support services in the United States for the sharing
economy, sees a fertile hybridity between a more structurally oriented
activism and new forms of enterprise. As she puts it, `To most law students
and lawyers, practicing transactional law isn't an obvious path to saving the
world . . . [but] transactional lawyers are needed, en masse, to aid in an epic
reinvention of our economic system.'
20
564
17 A. Sundararajan, `Peer-to-Peer Businesses and the Sharing (Collaborative) Economy:
Overview, Economic Effects and Regulatory Issues' Written testimony for the
hearing entitled The Power of Connection: Peer-to-Peer Businesses (2014), at
sm all bu si ne ss .h ou se .g ov /u pl oa de df il es /1 -15 -2 01 4_ re vi se d_ su nd ar ar aj an _
testimony.pdf>.
18 Anon, `Measures to Boost Sharing Economy in London' (2015), at
www.gov.uk/government/news/measures-to-boost-sharing-economy-in-london>.
19 W. Davies, `Ways of Owning: Towards an Economic Sociology of Privatisation'
(2012) 40 Poetics 167.
20 J. Orsi, Practicing Law in the Sharing Economy: Helping People Build Cooperatives,
Social Enterprise, and Local Sustainable Economies (2012).
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School
`Radical transactionalism', we would argue, is the creative redeployment
of legal techniques and practices relating to risk management, organizational
form, and the allocation of contractual and property rights, in order to further
the purpose of internalizing social and ecological values into the heart of
economic exchange. The role of law in allowing financiers and entrepreneurs
to quantify investments is often overlooked in analyses of the success of
capitalism. As Davies points out, concentrating on economic calculability
misses the point here: `Economists may claim to recognize institutions, but
they only do so via the effects, and miss the shared illusion which causes
them.'
21
The calculability of economic life that is both mundane and
enormously complex is only possible through the socio-legal formatting of
contracts, property rights, shareholder voting rights, and regulations. In
seeing, Davies argues:
how far equity, voting rights, debt, share, audit and so on can be tweaked in
various directions, before they become something else . .. one starts to imagine
a wholly different economy, simply through considering how freedoms, powers
and responsibilities might be combined differently, via subtly redesigned legal
instruments.
22
This kind of legal creativity has long been deployed to further extractive
economic pract ices outside of th e sharing econom y, but the plural
trajectories of sharing economies offer the possibility of turning this institu-
tional imagination to different ends. Whilst acknowledging the competitive
challenges reimagined initiatives face, `radical transactionalism' can under-
pin an incremental reconfiguration of the legal building blocks of property
and capital, reframing private business legal skills in ways that shift the
shared illusions they generate. Quite specific conceptions of finance,
markets, labour, and property emerge as a result of the way:
law enables individuals and institutions to send laser beams . .. from one point
in time and space to another, saying `this is what will take place; this is what
we agree has happened; this is what must happen; these are the conditions of
co-operation'.
23
The plural imaginaries of sharing hinge on the different directions in which
legal expertise shoots these `laser beams' ± whether along the current co-
ordinates of concentrated, `winner-takes-all' ownership, or in ways that chart
more democratic forms of economic life.
565
21 W. Davies, `Recovering the Future: The Reinvention of ``Social Law''' (2013) 20
Juncture 216.
22 W. Davies, `20 Public Spirited Lawyers Could Change the World' (2013) Potlatch
Blog, at ch.typepad.com/weblo g/2013/09/20-public -spirited-lawyers-
could-change-the-world.html>.
23 id.
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School
II. A CONVERSATION BETWEEN LEGAL CONSCIOUSNESS AND
DIVERSE ECONOMIES
1. Legal consciousness and dissenting collectivism
As the quotation that ends the previous section suggests, opening up the
meanings of sharing economy is an inherently political project. This makes
legal consciousness literature an apt lens for exploring the role of law in
doing so. There is a tendency in much legal scholarship (and arguably even
more so from outside of legal scholarship), to equate law and legality with
state policies, forms, and regulation. Legal consciousness scholarship
challenges this linkage and detaches understandings of legality from formal
state policies and regulation, while at the same time paying close attention to
the structural role that legal practices can play in sustaining dominant social,
economic, and political frameworks. In this context, legal consciousness
would be a productive lens for understanding how legal practices sustain
extractive versions of the sharing economy. However, we are particularly
interested in reversing that more common focus, looking specifically at how
legal practices can open towards more generative visions of the sharing
economy. In this section, we explain how recent work on a neglected
dimension of legal consciousness ± dissenting collectivism ± can be
extended to link with the discussion of radical transactionalism in part I. The
core of our argument in this second part is that radical transactionalism can
be fleshed out by filtering the legal consciousness of dissenting collectivism
through the perspective of the literature on diverse economies. Our main aim
is to provide theoretical grounding for the conceptual research agenda we
sketch out in part III, along with some concrete examples to bring some life
and colour to that research agenda. As Halliday and Morgan have argued,
24
within the Critical Legal Studies movement and Marxist sociology of law,
legal consciousness was taken to be both a constituent element of the legal
system and a description of law's hegemonic role in sustaining domination.
However, legal consciousness operated within the CLS tradition as a
theoretical tool largely in the absence of empirical enquiry.
25
Legal
consciousness literature explored the notion of law possessing hegemonic
power as an empirical puzzle
26
related to the theory of hegemony. Ewick and
Silbey's contribution is particularly important here.
27
They suggest that law
566
24 S. Halliday and B. Morgan, `I Fought the Law and the Law Won? Legal
Consciousness and the Critical Imagination' (2013) 66 Current Legal Problems 1.
25 A. Hunt, `The Theory of Critical Legal Studies' (1986) Oxford J. of Legal Studies 1.
26 D.M. Trubek, `Where the Action Is: Critical Legal Studies and Empiricism' (1984)
Stanford Law Rev. 575; A. Sarat and T.R. Kearns, `Beyond the Great Divide: Forms
of Legal Scholarship and Everyday Life' in Law in Everyday Life, eds. A. Sarat and
T.R. Kearns (1995).
27 P. Ewick and S.S. Silbey, The Common Place of Law: Stories from Everyday Life
(2014) 9. The empirical observations that drove the research were the persistence of
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School
draws its institutional support and the consent of those it systematically
disadvantages as a result of the interplay between two of three `narratives'
(or cultural schema) of legality: `before the law' and `with the law'. The fact
that these opposing narratives may be invoked in different settings and at
different times, permits legality, they suggest, to maintain its position of
domination and to retain the faith of its subordinates despite its failures and
injustices:
The forms of consciousness we call `before the law' and `with the law' . . .
[w]hile ostensibly expressing vastly different and contradictory images of
legality, together . .. constitute a hegemonic conception of law. At any moment,
the law is both a reified transcendent realm, and yet a game . .. Challenges to
legality for being only a game, or a gimmick, can be repulsed by invoking
legality's transcendent reified character. Similarly, dismissals of law for being
irrelevant to daily life can be answered by invoking its gamelike purposes.
Through these forms of consciousness (and the opposition between them),
legality can be an uncontested and unrecognized power that sustains everyday
life.
28
Halliday and Morgan complicated this explanation, however. Their second-
ary data-based study of radical environmental activists demonstrated the
importance of a legal consciousness of dissenting collectivism, something
they described as a powerful combination of the gaming potential of state
law and a sense of a higher transcendent law above state law. This narrative
or cultural schema is one:
where . .. collective identity is particularly significant, yet state law to varying
degrees is rejected . .. State law is critiqued as being oppressive to groups and,
more significantly, is struggled against ± . .. in a group-based attempt to alter
the structures of power in society.
29
For the activists in Halliday and Morgan's study, this combination fuelled a
strong critique of state law and sustained their counter-hegemonic struggles.
It thus did not operate to promote legality as an uncontested and unrecog-
nized power, as earlier legal consciousness studies sometimes implicitly
suggested , but instead p otentially o pened up oppo rtunities t o build
alternative imaginaries and institutions.
30
567
strong legal authority and allegiance coupled with observations of its ineffectiveness
and failure to achieve claimed goals and aspirations.
28 id.
29 Halliday and Morgan, op. cit., n. 24. The activists were involved in the Earth First!
Network during the 1990s in and around Manchester and Oxford in England, and in
North Wales. They were interviewed for a project conducted from 2000 to 2002
entitled `Radical Participation: Activists' Identities and Networks in Manchester,
Oxford and North Wales'. Halliday and Morgan conducted secondary data analysis of
57 semi-structured interviews archived in the United Kingdom Data Archive.
30 Ewick and Silbey (op. cit., n. 27) in fact do identify a cultural schema of counter-
hegemonic resistance they name `against the law' but it did not uncover concerted
collective identity work, perhaps due to the lack of any explicit focus on activists as
interviewees.
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School
Now it is fair to say that the data in Halliday and Morgan's study,
focusing as it did on radical environmental activists involved in direct action
at the margins of mainstream economic life, pointed to significant limits on
this potential for opening up alternatives ± limits that were typified by a
strong sense of fatalism about the specific potential of law to secure social
change. However, even in relation to this form of activism, the study
demonstrated and discussed the visible threads of a positive institution-
building pot ential inher ent in the lega l conscious ness of disse nting
collectivism. Halliday and Morgan
31
commented that these threads built
on the complex relationship between legal consciousness in relation to
property and capital on the one hand, and environmental legal consciousness
on the other hand. While many radical environmental activists associated
legality with formal state policies that secure and uphold arrangements of
property and persons that they would consciously and explicitly reject, they
also articulated a more positive, holistic conception of ownership and
property at times. They did not, in that study, articulate those alternative
conceptions in terms of law or legality, but the present article takes this step
forward.
We would argue that the likelihood of such positive potential for building
alternative institutions is strongly present in the context of the sharing
economy. Moreover, emerging practices of `radical transactional law' open
up opportunities to link this potential specifically to legal consciousness.
From this angle, the legal consciousness of dissenting collectivism is a form
of activism that challenges any assumptions of a dichotomy between
campaigning, advocacy, and direct action on the one hand, and building new
ways to experience political social or economic life on the other. Dissenting
collectivism from this angle stresses how campaigning and advocacy and
even direct action often emerge as necessary complements to the positive
institu tion-bui lding act ivities o f grass-r oots inno vation. T he sharin g
economy demonstrates just such a relationship. As such, it is a classic
instance of what Halliday and Morgan called scholars to explore at the end
of their article: an `orientation to formal state law and power that still enacts
the ethical commitments of dissenting collectives but [is] more positive than
negative and open to senses of ``legality'' beyond formal state law.'
32
How,
then, could we explore in more detail the legal practices that might align
with the substantive commitments of a generative, nurturing vision of the
sharing economy? We suggest that building links with literature on diverse
economies is a fruitful next step: one which opens up the possibility of
mapping the `diverse legalities' of sharing economies.
568
31 id.
32 id.
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School
2. Diverse economies
While legal consciousness literature can help frame an exploration of the
legalities that underpin different articulations of the sharing economy, it is
important to focus on practices rather than solely on ideas. Literature on
diverse economies is very helpful here, and helps avoid a much debated
tendency for legal consciousness approaches to slip into a chronicling of
individualized mental states, eliding the social, collective, and cultural
dimensions of legality.
33
Gibson-Graham
34
argues that the range of practices
that constitute typical conceptions of the economy are overly focused on
`capitalo centric' pr actices su rrounding m arkets, lab our, financ e, and
property. These are, they argue, just the tip of the iceberg in terms of
actually existing non-capitalist practices and liberatory economic projects
observable in the here and now. For example, they use an `iceberg' diagram
to illustrate the diversity of practices around working, stressing the partiality
of the central image of exchanging wage labour for money payments by a
capitalist firm on market terms (see Figure 2).
569
Figure 2. Community Economies website (www.communityeconomies.org/
Home/Key-Ideas)
33 S. Silbey, `After Legal Consciousness' (2005) 1 Annual Rev. of Law and Social
Science 323.
34 J.K. Gibson-Graham, A Postcapitalist Politics (2006).
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School
A more structured and broader version of this approach is based on
typologies that sort various practices related to labour, enterprise, finance,
transactions and property, dividing them into capitalocentric, alternative
market and non-market practices (see Figure 3).
Some diverse economy approaches further develop this typology into a
more overtly ethically inflected argument in favour of making visible `com-
munity economies'. Community economies are constellations of diverse
economic practices that reject mainstream notions of `the economic' as
something opposed to and distinct from `the social'. Gibson-Graham et al.,
35
for example, make an eloquent plea to `take back the economy', reimagining
labour, markets, finance, and property in the process. As Peter North reminds
us, small business owners are not associated only with values of competition,
economic growth, and profit maximization as much urban governance
practice and research assumes, but often equally or preferably value self-
actualization, sustainability, and community.
36
The sites where community-
based sustainability actions meld activism and enterprise are very often small
businesses. From the point of view of diversity neutrally understood, the
important point is this: the sharing economy is as much a solidarity food
cooperative as it is a private proprietary platform for local food distribution
such as FarmDrop, as much a community-owned renewable energy scheme
as the energy investment platform Mosaic, as much a social enterprise
bicycle shop as it is the corporate ride-sharing platform Uber.
570
Figure 3. Community Economies website (www.communityeconomies.org/
Home/Key-Ideas)
35 J.K Gibson-Graham, J. Cameron, and S. Healy, Take Back the Economy: An Ethical
Guide for Transforming Our Communities (2013).
36 P. North, `The business of the Anthropocene? Substantivist and diverse economies
perspectives on SME engagement in local low carbon transitions' (2015) Progress in
Human Geography, published online before print 17 May 2015, doi: 10.1177/
0309132515585049.
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School
Of course, diversity as such is rarely ethically neutral, and there are many
important differences between these examples. While they may share the
capacity to disrupt current markets, their deeper systemic implications are
contested, as we saw in part I. But that contestation is best explored by
moving away from assumptions about what is implicated in the form, say, of
the firm. As North commented in relation to diverse economies literature:
A firm might need to make a profit, but what constitutes `profit' as opposed to
costs or reinvestment and how much is `enough' profit, is discursively
produced, and consequently economies are composed of diverse sets of
practices that cannot be reduced to one singular driver.
37
These diversities of economic form have important legal implications.
3. Diverse legalities of sharing economies
While diverse economies literature has not to date explored law and legality
in any detail, an interesting bridge can be built to begin this conversation by
way of engaging with one of the grey literature strands of commons-based
approaches to sharing economies. David Bollier's work on the commons
38
highlights the importance of exploring what he terms `vernacular law'.
Vernacular law alludes to forms of `everyday legality', grounded in custom
and social practice rather than formal statutes and judicial decisions, and
reflecting a rough popular consensus and a keen knowledge of local
realities.
39
This links to Halliday and Morgan's point
40
that the positive
institution-building potential inherent in dissenting legal collectivism sug-
gests a preference for holding formal law at bay for a period while new
socio-economic imaginaries are forged. Bracketing the power of existing
legal and regulatory frameworks and practices `for the time being', and
crafting diverse legalities in the temporary interstices meanwhile, is moti-
vated by the difficulty of reworking the institutional underpinnings of the
economic system without the legal building blocks of property and capital.
We see this in the context of sharing-economy initiatives, driven by
several factors. First is the heavy reliance on mutual trust and quantitative
reputational feedback systems, particularly in the collaborative consumption
571
37 id., p. 339.
38 D. Bollier and S. Helfrich (eds.), The Wealth of the Commons: A World Beyond
Market and State (2014); B. Weston and D. Bollier, Green Governance: Ecological
Survival, Human Rights, and the Law of the Commons (2013), where Bollier also
articulates this conception of vernacular law: however, the argument is there
developed in dialogue with Weston's human rights scholarship to argue ultimately for
a `human right to the commons'. Although debating the merits of this approach is
interesting, it is not salient to the present article.
39 D. Bollier and B. Weston, `Advancing Ecological Stewardship Via the Commons and
Human Rights' in World Watch Institute: State of the World 2014: Governing for
Sustainability (2014).
40 Halliday and Morgan, op. cit., n. 24, p. 26.
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School
arena. The second is a sense that many sharing-economy initiatives are more
personal rather than commercial, more informal rather than formal ± at least
at their inception. And thirdly, many sharing-economy initiatives express a
powerful commitment to the practices existing in an anti-bureaucratic space.
For some, this is a fairly straightforward opposition to state-based regulation,
while preserving autonomy to craft elaborate self-regulatory linkages in the
`black box' of platform protocols and terms of use. Those committed to a
more generative and less extractive model of political economy take this
commitment further, to the point of resisting rational modernization. This
may arise out of an instinct of how closely the protocols of rational
modernization here are tied to extractive business models.
These factors shape the ways in which existing `legal and regulatory
tramlines'
41
appear as overt hindrances to the flourishing of sharing econo-
mies, whether generative or extractive. Particularly for dissenting collec-
tivists, these tramlines undermine attempts to shift the creation of the `shared
illusions' we alluded to in part I. Dissenting collectivist visions seek to create
a different `atmosphere' in the sense of `a space of resonance in which
certain kinds of thought and practice seem natural and desirable'.
42
The
space of resonance emerging around sharing economies is one in which
hybrid practices challenge standard legal categories, creating an uneasy
relationship with existing formal-legal systems that throw up regulatory
barriers and treat `grey areas' as disabling risk. Vernacular versions of
transactional legality enact instead the kind of `everyday law' recognized by
empirical studies of legal consciousness.
In this particular context of sharing economies, vernacular legalities are
emergent forms of lawful life that try to redefine or rearticulate customs
around exchange. Vernacular legalities are, in a way, the institutional
regularities of those diverse forms of economic life under the waterline from
the iceberg diagram. Some of the vernacular legalities, explored further in
part III, open up space for a radical transactionalism that animates the
perspective of dissenting collectivism. As we shall see further below, many
of these projects are fighting for conceptual breathing space to work through
diverse legalities that detach from standard conceptions of property and
capital. The shared illusions about law reveal themselves here in part through
collective disillusion. Legal scholars interested in diverse legalities, like
diverse economies scholars interested in community economies, also gesture
towards a specifically ethically inflected vision, one which Davina Cooper's
words capture well: `a vision of the ``good society'' in which pro-ecological
practice [is] linked to more egalitarian, trust-based, and communal forms of
572
41 Davies, op. cit., n. 21.
42 P. Sloterdijk, Spheres (2011), cited in A. Amin and N. Thrift, Arts of the Political:
New Openings for the Left (2013).
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School
work and trade.'
43
The next part of the article explores four pathways
towards this vision that are opened up by exploring the sharing economy
through the perspective of diverse legalities.
III. PATHWAYS OF DIVERSE LEGALITIES
The capaciousness of the sharing economy documented in part I has important
consequences for the task of imagining alternatives. Rather than jumping
directly to the intentional redesign of `new' or `alternative' economies by
immediately specifying detailed legal solutions, we follow the direction
offered by attention to legal consciousness and diverse economies. This focus
makes visible the potential for radical transactionalism inherent in the diverse
legalities that already inhabit the current institutional landscape. This is
important because the narrowing of what people understand by the sharing
economy has happened with remarkable pace. In early 2013, usage of the
concept of `collaborative consumption'
44
could be easily contrasted with `the
sharing economy'. By 2015, the two terms have become much more
synonymous in common use. If, as Wittgenstein suggested, usage is meaning,
this shift is highly consequential for those trying to reclaim the future from
capitalocentric conceptions of finance, markets, labour, and property.
In their influential account, Botsman and Rogers
45
suggested collaborative
consumption rested on four elements: trust between strangers, belief in the
commons, idle capacity, and critical mass. These four elements comprise an
uneasy yet fertile mix of diverse possible trajectories. As we elaborate on in
more detail below, the notion of idle capacity has been a kind of institutional
vector, embedding a techno-optimistic, extractive version of sharing into the
shared imaginaries of those drawn to this space. Without the vector of idle
capacity, the sharing economy can be much more easily imagined as an
activist social movement ± a critical mass of initiatives that enact a belief in
the commons, drawing on widespread trust between strangers. In what
follows, we show how Botsman and Rogers's four elements can be
reima gined t hroug h a lens o f diver se lega litie s in the co ntext of
community -based sus tainabil ity and shari ng-econom y initiati ves. Our
intention is to point forward towards potential research lines along these
paths rather than to document exhaustively or systematically emerging
patterns. But building on the framework established in part II, we do highlight
in particular the potential for sharing-economy pathways that institutionalize
a legal consciousness of `dissenting collectivism', in this way keeping open
573
43 D. Cooper, `Time against Time: Normative Temporalities and the Failure of
Community Labour in Local Exchange Trading Schemes' (2013) 22 Time & Society
31.
44 Botsman and Rogers, op. cit., n. 4.
45 id.
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School
the sense of plural and diverse legalities in this space. Our emphasis is mainly
on a conceptual mapping that helps to open up an ongoing research agenda,
more than on identifying highly specific legal solutions, but we use examples
of existing debates about solutions where relevant.
1. Idling potential and the legalities of organizational form
Idle capacity or, as it is sometimes phrased, idling potential, conveys an
image of dormant assets waiting to be monetized. Time, space, skills, and
household objects that lie outwith the borders of a `market economy' are
drawn inside those b orders and commodi fied according to st andard
economic dynamics of supply and demand. In a range of sharing economy
contexts, corporate sharing platforms make this attractive in language that
draws on both competition and community, promising low barriers to entry
and low transaction costs at the same time as painting a vision of warm,
informal social relations. Borrowing a drill from a neighbour through a
proprietary platform is depicted as preferable to the burdens of ownership.
The legalities that make this mix possible are subtly yet solidly present:
platform users need to confirm their identity, sign off on extensive `terms of
use' that cover insurance and other liabilities, and most importantly, pay a
fee to the platform owner. These practices engage issues of trust and
regulation that we take up further below. But they also bracket questions of
organizational form, which is at the heart of the notion of reusing idle
capacity. This notion resonates with powerful images of sweeping up the
excess energy, resources, and goods of a wasteful society and, as such, is in
many ways at the implicit heart of the claims to sustainability that sharing
economies might foster. But it is also explicitly about mobilizing economic
capital, turning time, goods, and space from passive and inert to active and
flowing. And as far as legal tools that channel the activity of sharing in this
way are concerned, the question of the formal legal entity is central. The
organizational forms and practices engendered by specific legal entities
channel the activities of sharing-economy initiatives along specific path-
ways, acting as a vehicle for spelling out who owns what and on what terms
it can be shared.
Failure to recognize the full range of possible variation in legal entity
structures that bring the sharing economy to life has the effect of sanitizing
organizational forms of sharing. A monoculture of private proprietary
corporations is all too often assumed as the engine that drives the extractive
sharing economy. But there are a myriad ways in which this form can be
tweaked, pulled, and pushed to animate imaginaries of belonging and
commons, rather than exclusion and extraction. The choice of a legal entity
for the formalization of an initiative determines the structure of property
rights and the relative centrality of profit. The question of precisely what is
shared (and between whom) in the sharing economy is in large measure
constituted by the rules embedded in or accreting to legal entities. Legal
574
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School
entity choice can often formalize, directly or indirectly, previously open-
textured and informal ways of mitigating harm or blurring gift and contract.
Some attempt to build this open-texturedness into legal entity form is,
however, newly apparent in Anglo-American settings, in the introduction of
new legal structures that braid together profit and social purpose.
New hybrid organizational forms that combine characteristics of for-profit
businesses and community-sector organizations have emerged in the United
Kingdom, the United States, and Canada in recent years.
46
In the United
Kingdom, the Community Interest Company structure introduced in 2005
47
legislatively constrains key internal corporate governance decisions via distri-
bution caps, dividend restrictions, and asset locks, as well as regulating the
content of `community interest'; Canada has largely followed this with a
structure called a community contribution company.
48
The United States has
one similar, but relatively little-used hybrid structure (low limited liability
company) but the American `benefit corporation' is much more popular and
was recently introduced in the influential Delaware jurisdiction.
49
Benefit
corporations are shaped by externally-focused reporting, disclosure, and
transparency obligations rather than internal governance constraints, and the
content of `benefit' is left to enterprise discretion. These are available in about
16 states, and a related certification system by a private organization called
`B-Lab' (who lobby for a model version of benefit corporation legislation they
have written) is available in any jurisdiction, and is being promoted beyond
the United States, including in Australia and the United Kingdom.
50
575
46 See R. Ridley-Duff and M. Bull, Understanding Social Enterprise: Theory and
Practice (2015, 2nd edn.); J. Defourney, `From Third Sector to Social Enterprise: A
European Research Trajectory' in Social Enterprise and the Third Sector: Changing
European Landscapes in a Comparative Perspective, eds. J. Defourney, L. Hulgard,
and V. Pestoff (2014); E. Talley, `Corporate Form and Social Entrepreneurship: A
Status Report from California (and Beyond)' (2012) Berkeley Public Law Research
Paper no. 2144567, at . A debate is in the early
stages in Australia over the desirability or otherwise of introducing a specific legal
entity structure that would explicitly address organizational hybridity. The Social
Innovation, Entrepreneurship and Enterprise Alliance (SIEE), which was a con-
sortium of social enterprise support organizations in Australia, produced, via its Legal
Models Working Group (LMWG), a report outlining the rationale for a distinctive
legal structure for social enterprise, and evaluating the pros and cons of the options
introduced in the United Kingdom, United States, and Canada: LMWG, The Legal
Models Working Group Final Report, a Report Prepared for the SIEE (2014), at
Models-Working-Group-Draft-Final-Report.pdf>. An Australian Treasury Depart-
ment committee recently considered the report.
48 S. Manwaring, A. Valentine, and M. Thomson, `Social Enterprise in Canada:
Structural Options' (2011), MaRS White Paper Series.
49 D.B. Reiser, `Benefit Corporations ± a Sustainable Form of Organization' (2011) 46
Wake Forest Law Rev. 591.
50 J.K. Grant, `When Making Money and Making a Sustainable and Societal Difference
Collide: Will Benefit Corporations Succeed or Fail?' (2013) 46 Indiana Law Rev.
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School
This swirl of structural experimentation is stirring up conceptual rethink-
ing about the legal structure of economic entities, from Simon Deakin's
emerging efforts to reimagine the conceptual basis of the corporation as a
commons rather than a nexus of contracts,
51
through to Rory Ridley-Duff's
enquiry into communitarian perspectives on social enterprise.
52
The promin-
ence of commons and communitarian principles in these responses is a
reminder that a much older legal entity form is also available for institutional
experimentation in the sharing economy: the cooperative. There has indeed
been a revival of interest in institutionalizing sharing initiatives in coopera-
tive forms
53
and a particularly spirited debate on this in the United States,
54
where unions are now supporting efforts to build worker-owned cooperatives
offering ride-sharing services,
55
and New York City has enacted a significant
package of legislative and financial support for cooperatives.
56
Diverse legal
entity structures, then, are the most obvious legal correlate of diverse
economies, reflected quite directly in the `enterprise' column in Figure 3
above. They constitute a fertile line of enquiry for questions of how to
institutionalize dissenting collectivism, one that will contribute to diverse
economies literature on alternative capitalist and non-capitalist forms of
enterprise, as well as to broader debates about the links between sustain-
ability and the social economy.
57
576
581; Talley, op. cit., n. 46. The B-Lab certification process appears to be gaining
some traction in Australia quite rapidly, with 20 companies so far certified, some 400
`in the pipeline' , and bi-weekly `B-Lab breakfasts' at the Melbourne Hub to provide
information to potentially interested applicants. There is less interest in this in the
United Kingdom, possibly because of the existence of the Community Interest
Corporation structure since 2005.
51 S. Deakin, `The Corporation as Commons: Rethinking Property Rights, Governance
and Sustainability in the Business Enterprise' (2012) 37 Queen's Law J. 339.
52 R. Ridley-Duff, `Communitarian Perspectives on Social Enterprise' (2007) 15
Corporate Governance: An International Rev. 382.
53 L. Corbino, `The Italian Solidarity E conomy's Slow Revolu tion. Grassroots
Economic Organizing' (2012) 2(12) GEO Newsletter, at
story/italian-solidarity-economy%E2%80%99s-slow-revolution>; P. Graefe, `Whose
Social Economy? Debating New State Practices in QueÂbec' (2001) 21 Critical Social
Policy 35.
54 J. Orsi, Practicing Law in the Sharing Economy: Helping People Build Cooperatives,
Social Enterprise, and Local Sustainable Economies (2012); T. Scholz, `Platform
Cooperativsm vs. the Sharing Economy' (2014), at
platform-cooperativism-vs-the-sharing-economy-2ea737f1b5ad>.
55 K. Harris, `Cabby-Owned Taxi Cooperatives on the Rise' (2015), at
www.shareable.net/blog/cabby-owned-taxi-cooperatives-on-the-rise>.
56
Democracy at Work Institute, US Federation of Worker Cooperatives, `Moving Past the
``Tale of Two Cities'': New York City Enacts First Pro-Worker Cooperative City Legis-
lation in the United States' (2015), at
``tale-two-cities''-new-yorkcity-enacts-first-pro-worker-cooperative-city>.
57 S. Connelly, S. Markey, and M. Roseland, `Bridging Sustainability and the Social
Economy: Achieving Community Transformation through Local Food Initiatives'
(2011) 31 Critical Social Policy 308.
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School
Of course, legal structures do not exist in a vacuum and the larger
political-economic context, particularly of finance, can limit the potential of
alternative corporate forms. For example, Henry
È,
58
in his analysis of changes
in cooperative law in Europe, Latin America, and India, shows how legal
changes that provide cooperatives with greater space to set their own rules
`underestimate the pressure of the financial market'; the upshot is that
cooperatives tend to insert investor-friendly clauses in their statutes and by-
laws. This wider context highlights the importance of widely shared values
such as a belief in the commons, Botsman and Rogers's second element of
collaborative consumption.
2. Belief in the commons and blurred lines between gift and contract
Belief in the commons is in many ways the much more public face of notions
of the sharing economy, evoking a resonance between gifts, common
property, and everyday notions of sharing. This dimension of the diverse
legalities of sharing economies is the one that provides the most space for
legality to take a range of potentially elastic forms beyond the confines of
formal-rational state law. Whereas alternative corporate forms are almost by
definition embodied in positive law, the legalities that underpin a belief in
the commons are much closer to the emergent forms of lawful life that
redefine customs around exchange. In this context, it is perhaps ironic that
the core legal element of private proprietary corporate ownership is the
`share'. Shares as a form of tradeable property rights contrast with processes
of sharing and mutuality as embodied practices of belief in the commons.
This tension is at the heart of the slippage inherent in the practical
manifestation of different versions of the sharing economy.
It is not surprising then that in many sharing-economy settings, a blurring of
the line between gift and contract occurs in ways that complicate diffuse
notions of collective sharing. The vernacular legalities discussed in part II are
important here, especially the way in which, as noted above, they provide space
for ambiguity, slowing down, and a greater centrality of social relations and
collective dialogue. These qualities are particularly salient to efforts to institu-
tionalize dissenting collectivism. They embody a sense of care, a dimension of
ethical inter-personal relations that often sits uneasily with positive law.
For example, there has been substantial criticism of large-scale web
platforms (of the kind that anchor many sharing-economy initiatives) for the
ways in which they depend upon and often exploit the gifted labour of their
users. While much of this criticism is focused on political defences of
equality and collective autonomy,
59
placing gifts at the heart of a `business
577
58 H. Henry
È, `Trends and Prospects of Cooperative Law' in International Handbook of
Cooperative Law (2013) 7.
59 J. Schor, `Debating the Sharing Economy' (2014), at
publication/debating-the-sharing-economy>.
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School
model' can also rub up directly against formal legal requirements. This
happens particularly in the area of employment, in the context of volunteer
labour and precarious work conditions ± so, for example, some aspects of
timebanking can attract tax liability
60
or even disqualification from state
disability allowances.
61
The role of intellectual property rights in sharing-economy initiatives can
blur the line between gift and contract. Yochai Benkler's well-known work
on peer production emerges out of experiments in the production of open-
source software, and he describes the projects that he characterizes as peer
production as `governance without property and contract'.
62
In concrete
terms, this means participants use `flexible, overlapping, indeterminate
systems of negotiating difference and permitting parallel inconsistencies to
co-exist until a settlement behaviour or outcome emerges', as he puts it ± an
open-ended way of relating that `permits for prolonged experimentation and
debate, rather than reaching closure earlier'.
63
This links back to the question of alternative corporate forms and diverse
legal entities, especially where open-source business models try to combine
with ways to generate an income stream that will sustain project founders
over a longer term. As Michel Bauwens and his colleagues describe their
aspiration to develop open cooperativism:
You can only use [peer-to-peer created] commons if you reciprocate to some
degree . . . the idea is to keep the accumulation within the sphere of the
commons. Imagine that you have a community of producers, and around that
you have an entrepreneurial coalition of cooperative, ethical, social, solidarity
enterprise. The idea is that you would have an immaterial commons of codes
and knowledge, but then the material work, the work of working for clients
and making a livelihood, would be done through co-ops.
64
In finance, the growing popularity of crowdfunding pushes at the boundaries
separating loans and donations. Some of the creative work being done here
can draw on ideas developed around the design of intellectual property by
`hactivists' embedded in the open-source movement. And the blurred line
between gift and contract is particularly prominent in the domain of financ-
ing. The legalities of expanding web-based crowdfunding from donation
578
60 G. Seyfang and A. Smith, The Time of Our Lives: Using Time Banking for
Neighbourhood Renewal and Community Capacity Building (2002), at
www.i-r-e.org/bdf/docs/a002_time-banking-for-community-capacity-building.pdf>.
61 C. Kyriacou, J.N. Lasker, and E. Collom, Equal Time, Equal Value: Community
Currencies and Time Banking in the US (2012).
62 Y. Benkler, The Wealth of Networks: How Social Production Transforms Markets
and Freedom (2006).
63 Y. Benkler, `Peer Production and Cooperation' in Handbook on the Economics of the
Internet, eds. J.M. Bauer and M. Latzer (2015).
64 M. Bauwens, D. Kleiner, and J. Restaki s, `Towards a Materi al Commons:
Cooperativism, Peer Production and Community Venture Funds for the Commons,
Interview with Michel Bauwens, Dymitri Kleiner and John Restakis' (2014), at
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School
sites (such as Pozible or Kickstarter) to the sourcing of equity finance are the
subject of ongoing or recent reforms in Australia, New Zealand, and the
United States.
65
Moving from donation to investment echoes a shift from gift
to contract and even beyond to property rights. As this shift in perspective
occurs, a wide range of fears emerge regarding regulatory risk. The formality
and anonymity of a web-based platform which accords secured personal
property rights in one's company to strangers over the internet generates a
sense of risk unable to be addressed by emergent customs based on gift-like
relationships. On the other hand, the very appeal of crowdfunding in part
inheres in the capacity to generate a sense of shared community in relation to
the funded project, a sense which in part rests on just such `gift-like'
relationships. The ambiguity of these hybrid dimensions of crowdfunding
complicates the design of different regulatory solutions: this can be illus-
trated in the view so metimes express ed by advocates of l egalizing
crowdfunding that those investing equity in social enterprise are never truly
expecting to be repaid, but rather to recycle any earned surplus as further
donations.
Similar issues are raised by recent spirited debates in the United Kingdom
about the tax benefits and regulatory recognition of renewable energy
cooperatives. This debate began in June 2014, when the Financial Conduct
Authority (FCA) first rejected applications for new renewable energy
cooperatives, alleging they are not `bona fide co-operative societies' because
members are not `economically participating' in the business.
66
The dispute
relates to FCA rules requiring new cooperatives to show active member
participation in trading activities.
67
A spokesperson for the Department of
Energy and Climate Change (DECC) remarked that they have been `. . .
working with the FCA to ensure the right balance is struck between member
protection and realising the enormous potential of community energy.'
68
Gift
relationships release significant potential for innovation in the direction of
radical transactionalism but re-regulating protection often assumes the kind
of extractive commercial relationship that `community energy' set out to
challenge. As those controlling existing power dynamics push back against
579
65 Corporations and Markets Advisory Committee (CAMAC), Crowd Sourced Equity
Funding (2014 ), at tp:// www. camac .gov. au/ca mac/ camac .nsf/ byHe adlin e/
PDFF ina l+R epor ts+ 201 4/$ file /CS EF_ Repo rt_ 21M ay20 14. doc >. Th is rep ort
discusses the regulatory frameworks in place in Italy, New Zealand and the United
States and makes recommendations for reform in Australia.
66
See Community Energy England (CEE), `Registration of community energy co-
operatives' (2015), at
67 FCA rules require lists as `buying from or selling to the society', `using the services
or amenities provided by it', and `supplying services to carry out its business'. Unlike
shops trading physical goods, British energy cooperatives are too small to comply
with electricity retailer regulations. Therefore, energy is often sold through brokers.
68 A. Vaughan, `Green Energy Co-Ops Blocked by Government Regulator' Guardian,
15 August 2014, at
energy-co-ops-blocked-by-government-regulator>.
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School
dissenting collectivism, vernacular legalities are challenged by existing
positive law. Debates in this context frequently turn to questions of
regulation, risk management, and the prevention of harm, as we do now.
3. Trust between strangers and the legalities of preventing harm
The interaction of the other core elements of a sharing economy initiative
becomes important when gift relations come under pressure from the
spectres of harm and risk. On the one hand, positive law can literally enact
strictures of care and responsibility when it restructures formal legal entities
into more democratic, horizontal, and generative forms ± this is the promise
of `radical transactionalism'. On the other hand, we should not forget that
legalities also play a crucial role in preventing harm; indeed, the `police
powers' of the modern regulatory state take this as axiomatic. From this
angle, formal law appropriately substitutes for interpersonal trust. Botsman
and Rogers's third element, however, belies this, stressing instead a principle
of `trust between strangers'. In many practical settings of sharing-economy
initiatives, trust is managed through technology, using identity verification,
reputational feedback systems, and similar devices. Users can leave ratings
indicating a poor quality service ± such as a smelly Uber car or Airbnb room
± that may disqualify the host or leave them open to higher fees. Thus, online
rating systems operate primarily as economizing devices by allowing both a
numerical `star' rating and open-ended valuation of the providers, but also
hold a post hoc risk-management function. Ratings would not prevent harm
occurring in the first instance; thus critics of Uber have pointed to its
minimal screening of drivers.
As Cameron Tonkinwise
69
has noted, the idea that trust is the powerful
operative modality is actually contradicted by the way in which technological
systems and architecture often bracket the need for trust as much as they
enable its operation. Reputational feedback systems, identity verification,
graded profiles, and similar devices remove the need for the leap of faith
implied by the notion of trust, even while they sidestep formal legal
protections. Of course, in small-scale grass-roots settings, vernacular legali-
ties are important, and in many cases do instantiate a modality of `trust
between strangers' as, for example, where a network of community-supported
agriculture schemes replace individual separate insurance schemes with
informally-provided mutual support and assistance. But the contested politics
of the sharing economy do underpin a much greater likelihood that formal
state law is invoked, whether through regulatory lobbying or direct litigation.
And as sharing-economy initiatives spread and become more widely used,
580
69 C. Tonkinwise, `Sharing You Can Believe In: The Awkward Potential within Sharing
Economy' (2014), at
9b68718c4b33>; C. Tonkinwise, `A taste for practices: Unrepressing style in design
thinking' (2011) 32 Design Studies 533.
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School
legal issues relating to the prevention or control of harm become a central site
of contestation, focused on the question of whether various police powers
regulations, such as health and safety, employment protection, or environ-
mental outcomes, should apply to `sharing economy' types of initiatives. This
has raised fierce internal debate and also catalysed quite extensive litigation,
particularly around the sharing of transport and housing.
70
The clash between an initial culture of `trust between strangers' and the
operation of existing formal legal and regulatory framework reflects the fact
that in many sharing-economy settings, there has been genuine regulatory
ambiguity. This ambiguity flows from the way in which the sharing
economy rearranges taken-for-granted relationships between producers and
consumers in a range of different settings, and in so doing confounds
expectations of the scope of `regulated entities' across a diverse range of
work practices, flows of money, and risk-management strategies. The
regulatory ambiguities catalysed by the sharing economy sometimes appear
to lead in the direction of dissenting collectivism, yet other times decisively
away from that. We can see this ambiguity play out in the short history of an
entity called Peers: a United States-based member-driven organization that
claims to have more than 250,000 members globally.
Peers seeks `to grow, support and protect the sharing economy' and its
membership encompasses multiple sub-communities of the sharing-economy
landscape, from grass-roots commons-based projects to techno-optimistic
and entrepreneurial initiatives. It has gone through an interesting evolution
from its early days, initially casting itself largely in terms of an advocate for
social change that could assist ordinar y everyday citizens to mount
`change.org' petitions to state agencies against regulatory barriers to their
activities (for example, coming from health and safety legislation, planning
law or banking regulations). Even in this form, there was a thin line between
viewing Peers's practices as private interest games of `business as usual' or
pre-figurative glimpses of something quite novel. The campaigns they
sparked positioned Peers as simultaneously a lobby group for protectionist
regulation and a funnel of grass-roots support for `disruptive change'
modelled along campaigning sites such as www.change.org. Peers employed
diverse ways of framing the larger social purpose of the regulatory cam-
paigns it fought on behalf of its members, mutually entangling the language
of risk management with more populist narratives of protecting and
581
70 Uber Technologies Inc. v. Barbara Berwick, California Labour Commissioner Case
No. 11-46739, at (holding
that Uber drivers in California are employees and not contractors); Airbnb Inc v. Eric
Schneiderman, Attorney-General of New York, New York Supreme Court, Case 5393-
13, at (quashing the
Attorney-General's subpoena for host data from Airbnb as unconstitutionally vague).
See, also, for litigation in Germany,
uber-germany-ban-idUSKBN0ME1L820150318>.
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School
empowering `ordinary people' who seek to disrupt the business-as-usual
practices of often powerful incumbents.
After only a year in operation, Peers `rebranded' itself, moving away from
the activist-advocate role and emerging as a quasi `peak body' representing
the micro-entrepreneurs who operate small-scale businesses. In this mode,
even its emphasis on `smart regulation policies' shifted, to be supplemented
by directly offering products and services such as insurance and tax advice
tailored to sharing-economy contexts. There is a rich agenda for research
here, exploring the interactions between self-regulation, changing patterns of
state regulation across multiple scales and `platform responsibilities'. These
socio-legal developments dovetail with economic sociologists' observations
about proliferating modes of valuation,
71
many of which are detached from
money value.
72
It is worth saying more about the double move embedded in negotiating
regulatory ambiguity in sharing economy contexts. The first move is
typically a claim to regulatory autonomy, which is then deployed along two
key tracks: skirting regulatory grey areas and winning regulatory con-
cessions. In relation to the first, because of the reconfigured relationships
between producers and consumers in the sharing economy, it is often unclear
whether existing regulatory regimes apply at all. One response to this has
been for entrepreneurs or initiatives to evade ± either surreptitiously or in
some cases quite flamboyantly ± the applicability of such regulation. The
ride-sharing company Uber is the most publicized example of this, with its
aggressive strategies of openly flouting local government laws, paying fines
on behalf of its drivers, and courting consumers wanting cheaper taxi fares to
lobby local government to change those regulations. But in many ways
Uber's tactics differ from those of Peers and its member only in scale and
tone: looked at systemically, both are responses to the genuine ambiguity of
legal applicability, and the fact that only an overtly normative policy
analysis can justify a yes/no answer in many instances.
At a smaller scale, and in the absence of powerful incumbents, this
becomes easier to see, especially when specific regulatory concessions have
been secured. For example, should a co-working hub configured as a
Community Interest Company, whose members pay rental within the
building in proportion to their earnings for that month, receive discretionary
relief on business rates for all its tenants, even those who are structured as a
traditional limited company? Or should a private for-profit car-sharing
company be allocated dedicated parking spaces by the local municipality
without being charged for them, when it self-identifies as a social enterprise
and ensures full open public access to all the spaces it manages?
582
71 K. CËalõsÎkan and M. Callon, `Economization, Part 1: Shifting Attention from the
Economy Towards Processes of Economization' (2009) 38 Economy and Society 369.
72 L. Adkins, `What Are Post-Fordist Wages? Simmel, Labor Money, and the Problem
of Value' (2015) 114 South Atlantic Q. 331.
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School
Interestingly, when there are powerful incumbents, such as multinational
hotel chains, food companies, and car-rental companies, a pattern is
emerging in respect of the regulatory or legislative concessions secured. In
settings as diverse as home food businesses, insurance cover for peer-to-peer
car sharing, and sharing home accommodation space through Airbnb,
regulatory legitimacy has been conferred by effectively exempting small-
scale activity. If the sharing economy initiative's `surplus' does no more than
`offset their costs' (in peer-to-peer car sharing, for example), or exceed an
annual limit (in home food businesses or Airbnb rentals, for example), then it
is regarded as legal. In effect, the legislation is saying `Yes, you can do this ±
but not too often'. In this pattern, legislation carves out a specialized zone of
practice which is exempted from being treated as `commercial use', with the
core trade-off being to provide protection against harm in exchange for
limiting the extraction of `profit'. Thus initiatives that emerge precisely to
chall enge di stinc tions b etwee n `comm ercia l' and `n on-co mmerc ial'
activities are in due course legitimated by intricate legal frameworks that
(re)formalize just such a distinction.
As can be seen from the examples given above, the claim to regulatory
autonomy leads in different directions, depending on the ethos and details of
its deployment. On the one hand, it can constitute essentially a new version
of a familiar private-interest regulatory game, albeit with a neoliberal
technogloss. Actors argue vociferously for autonomy from state-based urban
governance and for the autonomy to self-regulate. Where these actors control
powerful platforms, as is often the case with internet-enabled initiatives in
the sharing economy, many worry that they will privatize self-serving
regulation in the form of platform protocols. Moreover the scale and
anonymity of the web-based interface enables such rapid mass abstraction,
scal ing u p, and s tand ard izat ion o f exch ang e (wit h com pens ato ry
customization via algorithms) that new market entrants rapidly wield (with
the backing of capital) the kind of power traditionally held by incumbents.
From this perspective, the pattern of regulatory reform noted above can be
interpreted as a strategy to contain local self-determination within boun-
daries that limit its capacity to exert economic power to shift the status at a
collective level.
Yet there is another facet of claiming regulatory autonomy which is much
more closely allied to a legal consciousness of dissenting collectivism. From
this perspective, sidestepping existing regulatory regimes is a form of
activism, part of a wider pattern of social mobilization against a broken
economic model. While some rejections of existing applicable laws may be
quite overt, many are almost a form of sub-activism which seek mainly to
preserve a space for experimenting with novel means of reconfiguring work
practices, money flows or risk management. They seek to hold back, at least
for a while, the relatively rigid process of congealing these innovations into
formal law, in order to give room for new modes of social coordination and
relational interdependence to breathe, or for distinct local (non-essentialized
583
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School
and contingent) communities of place or interest to flourish. Where they
secure formal regulatory concessions, they do so once again in order to carve
out space to foster local community economies and a sense of place. From
this perspective, multiple local self-determination initiatives, even when
operating at limited scale, can exert collective economic power, through
networking and coalitions, sufficient to enact systemic economic change.
This evokes precisely the resonant core of dissenting collectivism: that sense
of collective agency mobilized in response to disadvantage that is sustained
or ignored by extractive legalities. But as optimistic as this final note may
sound, it has also become clear that self-regulatory strategies can constrain
surplus creation and limit scale in ways that limit the economic power of
local self-determination, confining it to an inevitably `fringe' position while
continuing to privatize important areas of social relations on a broader scale.
Scale, then, is critical ± and it is to this we turn to conclude.
4. Critical mass and shared infrastructure
To preserve the plural possibilities buried in the sharing economy, then,
radical transactionalism needs an institutional infrastructure to support the
flourishing of the `atmosphere' we referred to above, that `space of
resonance in which certain kinds of thought and practice seem natural and
desirable'.
73
The lines and paths we have sketched so far start to reimagine
the ways in which law can foster interaction, keep harmful extraction in
check, and stitch together more humane and sustainable forms of collective
organizations. But these kinds of imaginings will take root at a systemic
level only if the trajectories they gesture towards attract a critical mass of
enthusiasts. Critical mass is Botsman and Rogers's fourth principle of a
collaborative economy, but one which they use largely to gesture towards the
sheer volume of potential consumers. This all too easily equates with
calculations of viable market scale and scope, a tipping point for market
research and potential investors.
Our approach essentially takes the opposite position on the calculability
of the human interactions behind sharing. A more systemic understanding of
critical mass would be one that understands it as shared infrastructure for
emerging forms of economic and legal reconfiguration. What is important in
this approach are questions of atmosphere, norms, and cultural shifts more
than the aggregation of transactions and demographic data. The everyday
legal practices mapped along the first three pathways negotiate a tightrope
between economic and social dimensions in their management of everyday
organizational life. This fourth factor helps us view them together, such that
they constitute in effect a shared infrastructure for enabling sharing
economies to develop along particular trajectories.
584
73 Sloterdijk, op. cit., n. 42.
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School
At base, infrastructures are `matter that enables the movement of other
matter'. Infrastructure is the crucial foundation for achieving critical mass. It
is in effect the platform for scaling up, to use the language of investors so
popular in extractive sharing-economy initiatives. Some platforms are
physical or technological: the national grid for community energy groups,
public parking spaces for car-sharing companies or dedicated desks in co-
working spaces are all examples. But access to such shared infrastructure
will depend in part upon the choices made by an initiative in relation to its
legal entity structure and its intellectual property rights. For example, grid
access p rocess es, econ omic arr angemen ts, and r egulato ry rules f or
community renewable energy groups together mediate the materiality of
electricity production with its many social meanings. Initiatives such as
community-owned renewable energy convey both the existing and potential
solidarity inherent in the otherwise extractive infrastructure of electricity
production. They not only challenge existing regulatory arrangements, but
also suggest an alternative collective vision of production and exchange.
Underpinnin g this intricat e dance of instit utional brico lage is an
appreciation of infrastructure that moves well beyond `mere' material forms
to encompass the arrangement of the political rationalities, organizations,
accounting ledgers, audit, and other governmental practices that comprise
infrastructure. Crafting innovative new policy and legal support structures to
foster the sharing economy calls for a dose of creative imagination about the
nature of infrastructure: is it a market asset, a democratic space or a com-
mons? Answering such a question means doing `what infrastructure itself has
failed to do, creating situated knowledges that teach us what is underneath
our society, rather than simply metering information as commodity through
more optic tubes.'
74
Thus, in the more corporate end of the sharing economy, narrow
techniques of market asset valuation rapidly dominate, resembling just this
sense of numbers travelling through optic tubes. Airbnb, for example, has
developed a hospitality code in order to educate its hundreds of thousands of
hosts to behave `more like hotels', just one example of platform self-
regulation that effectively shoots legal laser beams along standardized,
measurable, and ultimately financeable lines. Similarly, corporate sharing
platforms often calculate market potential through social network and other
proxy metrics, shifting valuation from the individually-held skills of workers
and citizens to newly centralized and privatized sites of measurement and
assessment.
Contrast this with the way in which commons-based visions of the sharing
economy articulate the task developing the foundation for critical mass. As
Michel Bauwens and his colleagues put it, the task is to understand:
585
74 A. Rothstein, `How to See Infrastructure: A Guide for Seven Billion Primates' (2015),
at p://r hizom e.org /edit orial /2015 /jul/ 2/how -see- infra struc ture- guide -seve n-
billion-primate/>.
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School
how to interpret the commons vision with a structure, an organizational
structure and a legal structure that actually gives it economic power, market
influence, and a means of connecting it to organizational forms that have
durability over the long-term.
75
CONCLUSION
This article has suggested that building a bridge between legal consciousness
scholarship and diverse economies scholarship has fertile potential to illu-
minate collective senses of agency in response to disadvantage that is
sustained or ignored by law. By bringing legal consciousness and diverse
economies into conversation with each other, we offer a fertile approach to
the analysis of community-level action for sustainability, including its
troubled relationship to the emerging `sharing economy'. This new agenda
considers struggles over transactional legality as a neglected site of activism
for sustainability, opening a window into debates about the substantive
fairness of specific sharing-economy initiatives. The diverse forms of
economic life are a neglected facet of legal consciousness literature, in
particular, in the way they illuminate transactional legalities rather than the
more familiar legalities embedded in public law, social welfare, and human
rights that often dominate law and social change literature. Recognizing and
stressing the diversity of both economic life and forms of law opens up an
understanding of `radical transactionalism', where legal building blocks of
property and capital can be reimagined and reconfigured, and mono-
chromatic visions of the sharing economy given fresh colour.
We hope that future research by ourselves and others can draw on this
framework to explore concrete instances of community-based sustainability
actions and sharing-economy initiatives in the contexts of the history and
trajectory of particular local settings. This will potentially re-energize the
original spirit of legal consciousness research, enabling scholars to explore
the ways in which cultural narratives about legality constrain and/or enable
social action. It also has the potential to expand the reach of diverse
economies research, creating a conversation that illuminates our under-
standing of the role of law in society and in everyday lives.
The different paths along which we have mapped the emergent `everyday
law' of the sharing economy are united by experimentation with ownership
and control in ways that are open to an economic whole animated by
collective agency, rather than profit extraction. These experiments will
define in very precise ways who, both within and beyond these emerging
initiatives, owns the assets, the income streams, and the right to participate in
decision making. All too often, the intricate detail of formal solutions to
586
75 Bauwens et al., op. cit., n. 64.
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School
specific legal problems leads to the imbrication of law with financialization
strategies, in ways that work against the grain of democratizing the sharing
economy. Thus, we eschew the laying of yet more optical fibres of
financialization and, instead, propose that shared infrastructure must be
situated in ways that enable not a preference for access over ownership, but
shared access to ownership.
The potential for shared infrastructure usefully complicates presumed
dichotomies between generative and extractive versions of the sharing
economy. The optics of finance cannot or should not be dispensed with
entirely: individualized and financialized models of ownership and control
compete ± and overlap
76
± with broader visions of commons-based govern-
ance. As these rub up against each other, multiple future trajectories emerge.
Our point, following diverse economies research and demonstrated through
network analysis, is that each should become known on their own terms.
Lawyers could be immensely helpful here. As Will Davies has argued,
`twenty public-spirited lawyers could save the world'.
77
The paths we have
traced along the diverse legalities of sharing economies position `public-
spirited law' in unexpected ways. Radical transactional lawyers, in dialogue
with committed regulatory civil servants, may be the most interesting site of
the negoti ations arou nd regulat ory ambigui ty that shape t he future
trajectories of sharing economies. Work such as Janelle Orsi is doing could
multiply and mushroom to produce such an effect, and the proliferating
networks and coalitions around alternative economic trajectories may soon
include more overtly legal ones. These could sow seeds that reimagine legal
interventions and regulatory frameworks along lines crafted away from
Botsman and Rogers's elements of collaborative consumption and towards
that vision of the `good society' implicit in dissenting collectivism in which
`pro-ecological practice [is] linked to more egalitarian, trust-based, and
communal forms of work and trade'.
78
Stitched together into shared infra-
structure for a new economy, these lines could put business lawyers at the
centre of a transformative public-spiritedness.
587
76 S. De Paoli, V. D'Andrea, and M. Teli, `Why free software is not the antonym of
commercial software: Two case studies from corporate and volunteer based projects'
(2012) 1 J. of Peer Production, at
77 Davies, op. cit., n. 21.
78 D. Cooper, `Time against Time: Normative Temporalities and the Failure of
Community Labour in Local Exchange Trading Schemes' (2013) 22 Time & Society
31.
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School
To continue reading
Request your trial