Over the past decade, scholars of law and geography have been foraging in America's cities, hunting for the commons. Along the way, a new common sense has cropped up, which takes urban farms and community gardens as prototypical examples of the urban commons. Farm fields and garden plots produce not only vegetables, the argument goes, but also opportunities for residents to access and use land as a shared, decommodified resource. As both social practice and emergent institutional reality, such urban commons challenge and are challenged by the logics of public and private property that dominate our cities' legal landscapes.
This Article, rather than assuming that urban farms and gardens are examples of the urban commons, poses this as a question. Are they in fact cases of commons governance? And if so, how do people bring this about? I explore these questions from the ground up, through a socio-legal mapping of how people have gained access to and sought to govern land for a community garden and an urban farm in two neighborhoods on Chicago's South Side. This mapping suggests that we should conceive of urban farms and gardens as sites where people experiment with the rules, norms, and forms of property that govern urban land. Municipal policies can promote property experiments that seek to treat urban land as a shared community resource.
Table Of Contents Introduction I. Hunting the Urban Commons A. The Commons in the Garden B. Socio-Legal Mapping C. Property Experimentalism II. Property Experiments in Chicago's Gardens and Farms A. Kumunda Community Garden 1. Dispossession as Threat and as Opportunity 2. The Threat in the Tall Grass 3. Use It or Lose It 4. The Broader Context of Sharing 5. Gleaning in the Garden B. Growing Home Urban Farm 1. The Saga of Surplus Land 2. Coming to Englewood 3. From Ownership to Trust III. The Urban Commons as Property Experiment Conclusion INTRODUCTION
Over the past decade, scholars of law and geography have been foraging in America's cities, hunting for the commons. In the process, a new common sense has cropped up, which takes urban farms and community gardens as prototypical examples of the urban commons. (1) Farm fields and garden plots produce not only vegetables, the argument goes, but also opportunities for residents to "reclaim the commons" by accessing and using land as a shared, decommodified resource. (2) As both social practice and emergent institutional reality, such urban commons challenge and are challenged by the dichotomy of public and private property that dominate our cities' legal landscapes. (3)
But are urban farms and community gardens actually examples of the commons? And if commons governance is indeed emerging in the fields of urban agriculture, how is that happening? These questions are often bracketed, with farms and gardens assumed, without much investigation, to be instances of commons governance, which comes about through "self-organization." (4) Instead of relying on local government to bring about the commons by ordinance, urban farmers and gardeners are said to be "self-organizing" the rules of the urban commons. (5)
In practice, what does governance in urban farms and gardens look like? Should we understand the rules and norms crafted by urban gardeners and farmers as commons governance, and the result of self-organization? Does that leave out important ways in which their socio-legal settings are not governed as commons, and are the product of rules that urban growers take, rather than those they make? A better understanding of these questions could help people think about and advocate for policies that promote shared access to urban land and other resources. This Article takes urban agriculture as a key case of how people may be bringing about an urban commons, and investigates the socio-legal processes by which urban gardeners, farmers, and their policy allies may be bringing an urban commons--or some other forms of governance--into being.
I draw on over four years of ethnographic research with farmers, gardeners, and urban agriculture policymakers in Chicago, Illinois. From 2011 through 2015,1 observed how farmers, gardeners, and their allies tried to increase access to affordable land, and how they worked to govern and use such land when it was made available. From time to time, I partnered with the Chicago Food Policy Action Council in projects to identify new parcels of land that could be used for urban agriculture and to explore new means of arranging land tenure for such parcels. (6) I also had opportunities to learn about the process of land acquisition through research into the internal archives of an urban farming organization (7) and dozens of interviews with farmers, gardeners, city officials, and urban planners.
My research suggests that with a ground-up explanation of how urban growers participate in bringing about new forms of governance--which some have proposed thinking of as an urban commons--it is best to set aside, at least temporarily, concepts of "the commons" and "self-organization." Growers in Chicago seldom speak in those terms. To be sure, they and their allies in and out of city government are keen to devise ways for people to access and use land as a shared, productive resource. But the rules, forms, and norms they are tinkering with--from zoning laws and land trusts (8) to landscaping regulations and lines from Leviticus (9)--are not what we usually associate with the commons.
In this Article, I explore how we might understand the governance of land for urban agriculture more realistically, as the fruit of a wide range of legal experiments that urban growers and their allies have pursued in efforts to expand urban food production. In Part I, I review how scholars of the regulation of urban space have theorized urban farms and gardens as sites of the urban commons. I then propose a method of socio-legal mapping to understand how the property experiments underway in such places might--or might not--be understood in terms of the commons and self-organization.
In Part II, I undertake such a socio-legal mapping, examining how the terms of land use and access for farming and gardening have been shaped by a wide range of laws, regulations, rules, and norms related to property. Two sites serve as case studies for this mapping exercise. The Kumunda community garden in Chicago's Woodlawn neighborhood illustrates how land access and use for urban gardens involves not only self-organized garden rules that prioritize use and sharing, but also rules concerning the tax status of nonprofits, municipal prohibitions on uncut grass, land deals negotiated with powerful neighborhood institutions, gleaning programs inspired by the Torah, and state and local composting regulations. (10)
At the Growing Home urban farm in Englewood, people transitioning out of homelessness and incarceration can gain job skills. The farm sits on two pieces of land, one acquired through a transfer from the city, and another held in trust by NeighborSpace, Chicago's urban agriculture land trust. (11) Understanding how Growing Home provides shared access to and benefits from its land requires tracing how it emerged from experimentation with a federal statute governing disposition of surplus federal property, and an effort to reinterpret NeighborSpace's mission to include commercial sites. I also describe how Growing Home has helped spur conversations around how land might be held in trust for for-profit farms.
I conclude by arguing that socio-legal scholars looking for sites of the urban commons should focus on the property experiments carried out by urban growers as they claim access to vacant land, and govern it as a shared community resource. A socio-legal mapping of such experiments reveals that growers and their allies may be self-organizing certain rules for governing land for gardens and farms, but do so in relation to rules created by state and local government and by reference to core elements of private property. The claim, then, is neither that the Chicago cases examined here represent an "urban commons," nor that they are typical of how people elsewhere govern land that residents may use as a shared resource. Rather, they point us in the direction of a more grounded, realistic approach to understanding how people bring about and attempt to institutionalize alternative modes of governing urban land. This perspective could help craft public policies that encourage the collective management of land and other community resources.
HUNTING THE URBAN COMMONS
Until relatively recently, the vast majority of research on common property resources and commons governance overlooked the urban commons. (12) But over the past decade, urban scholars across a wide range of disciplines have grown interested in the commons as a category of analysis, an institution, and a social practice. As scholars have gone on the hunt for the urban commons, they have found it in a wide range of settings, from neighborhood orderliness (13) to abandoned department stores, (14) sidewalks (15) to dog parks,16 public spaces (17) to limited equity housing cooperatives. (18) Excitement for the urban commons among planners has produced competitions to bring the concept to new spaces. (19) Some scholars have suggested that the city itself is a commons, and ought to be governed as such. (20)
The Commons in the Garden
One of the most frequently cited examples of the urban commons, however, is the community garden. (21) Legal scholars and social scientists have made a wide range of claims about what community gardens, taken as the prototypical example of the urban commons, make possible. Some, like geographer Nathan McClintock, take gardens and urban agriculture as a way to produce food in a manner that is cooperative or collective. (22) For David Harvey, what is more interesting is how gardens are an example of what he calls a "social practice of commoning,"...