SYDNEY: 26 May 2013: In 2009, Danny Kennedy, campaign manager for Greenpeace Australia, left behind 14 years of campaigning and advocacy to found the solar energy start-up company Sungevityin California. Recently launched in Sydney, Sungevity has established a partnership with the online campaign not-for-profit Getup, paying them $350 for each new customer they refer, thus raising potentially substantial sums for campaigning at the same time as securing market expansion for what Kennedy calls 'The Rooftop Revolution'. This novel blend of .com and .org. is but one instance of an expanding range of initiatives forged at the intersection of social activism and social enterprise, the topic of a new research project led byProfessor Bronwen Morgan. Working with Dr. Declan Kuch, and funded by an Australian Research Council Future Fellowship, 'Between Social Activism and Social Enterprise' views these kinds of initiatives as productive challenge to well-worn dichotomies between public and private spheres, state and market forms of governance, and economic and social objectives - even perhaps as 'bottom-up' efforts to restructure both the conceptual and institutional underpinnings of corporate social responsibility.
The researchers are studying small-scale initiatives in Australia that mix elements of social activism and social enterprise in an effort to respond to environmental challenges, particularly that of climate change. They are exploring the legal and regulatory support structures for such initiatives in four areas: community-based agriculture; community energy projects; car-sharing and co-working initiatives. Together these four areas provide opportunities to restructure key infrastructural platforms (transport, energy, food and work environments) that enable less carbon-intensive production, distribution, exchange and consumption. Put in more active terms, ordinary people, perhaps frustrated with the inertia of government policies and large-scale corporate routines and practices, are experimenting with different ways of moving around, securing energy, feeding themselves, and making a living.
These experimental organizations have cut through government, corporate, and social life with varying forms of resistance. Therefore, the researchers will map three facets: trajectories of emergence, structural governance choices and legal encounters with the wider institutional environment. In respect of the first, we are especially interested in the profile of social entrepreneurs and the ways in which they move between activism and enterprise over the course of a career. In terms of structural governance, the choice of a legal entity for the formalisation on an initiative is a critical juncture of the legally salient narrative of an initiative. Many support services for social enterprise cast this as the central legal issue, but our project seeks to dig deeper than entity choice into questions of the structure of property rights that flow from entity choice, and the relative centrality of profit. The blurring of social and economic boundaries is relevant here too, as returns on investment are seldom simply monetary. Finally, in relation to the third facet, we see two primary domains of legal encounters with the wider institutional environment: the prevention or control of harm, and the question of when (often informal) gift relations morph into, or ought to be treated as, formal contractual relations.
The wider implications of this research are three-fold. First, it directs our attention onto initiatives which may look much less overtly 'green' than top-down state-sponsored carbon-reduction initiatives that have historically been the providence of left-wing politics. This in part reflects the ebb and flow of public opinion on global environmental matters and the currentbroadening (Hale 2008) of the focus of environmental politics to encompass not just advocacy of government but also community mobilisation; social as well as environmental goals; and an interest in changing values and identities more than simply improving institutional design frameworks, such as carbon pricing.
Secondly, the very breadth of this shift 'beyond the green wrapper', so to speak, suggests a potential structural shift in the larger economy - and one whose political salience seems to be genuinely ambiguous. One commentator has summarised the dimensions of the shift as constituted by a focus on access rather than ownership, internet-enabled networks rather than hierarchies, and sharing rather than scarcity as the core practice of 'adding value'. Yet taken together these ideas point in diverse directions, some less novel than others. Janelle Orsi characterises it as a collective project to catalyse a 'sharing economy'. The popular term 'collaborative consumption' sits much more easily with a world of start-ups and venture capital, in large part because it embodies approaches to markets that have typically been considered right-wing. More bleakly,Jaron Lanier paints these developments as fatally undermining middle-class stability and intensifying winner-takes-all competitive dynamics. Another commentator sums up the mechanisms of ‘collaborative consumption’ as follows:
The theoretical underpinnings for the redistribution (not of income or wealth, mind you, just the stuff you already wish you could get rid of) are a sentimental communitarianism fused with a Hayekian faith in spontaneous order… Sharing isn’t simply caring anymore; it’s becoming an alienated system for proving your trustworthiness, your willingness to play ball.
Thirdly, there are some interesting implications for the organisation and tenor of legal practice in relation to such initiatives. Janelle Orsi's book jacket puts it this way:
To most law students and lawyers, practicing transactional law isn’t an obvious path to saving the world. But as the world’s economic and ecological meltdowns demand that we redesign our livelihoods, our enterprises, our communities, our organizations, our food system, our housing, and much more, transactional lawyers are needed, en masse, to aid in an epic reinvention of our economic system....Sharing economy lawyers make the exploding numbers of social enterprises, cooperatives, urban farms, cohousing communities, time banks, local currencies, and the vast array of unique organizations arising from the sharing economy possible and legal.
This reframing of transactional lawyering challenges established assumptions of oppositional relationships between public interest law and corporate law. One could ask, for example: is giving the sharing economy regulatory 'room to breathe' a question of activism, or of business strategy? Would a lawyer defending a 'disruptive start-up' against allegations of failing to comply with current regulatory frameworks see him or herself as an activist or a professional skilled in creative compliance? Engaging with law in these hybrid sites between social activism and social enterprise sparks a host of provocative and interesting questions we hope to explore: Is the sharing economy really a radical new departure or merely a familiar chapter in a well-known story of private interest theories of regulation? Are these developments simply the latest assimilation of critiques of consumerism or will they effectively challenge the current gatekeepers of our energy-intensive lifestyles. And could they help to move climate-responsive practices from 'alternative' niches to the mainstream of mass society?