The role of legal and digital code in transforming nature into financial capital and the environmental dimension of the rent of land
Economic value of nature; rent of land; Legal code; Digital code; Common goods
This paper aims to analyse the role of modern legal codification, and more recently, digital code, in transforming common environmental goods, qualities and functions into capital, as well as its implications for extracting financial value from land rent, which we refer to as an environmental dimension of land rent. These natural assets and qualities, which are generally conditions of scarcity – whether due to overexploitation or concentration – generate a willingness to pay on the part of certain public and private agents, and are selected and constructed as autonomous economic assets of the land, now called “environmental services,” putting pressure on legal systems to create new monopoly rights for the appropriation of income from this environmental dimension of land. This environmental income can be generated through payment for environmental services (PES) contracts, whose price is usually set by the production chains interested in their economic use, or through the negotiation of environmental financial assets generated from them, such as ‘carbon credits’ and Environmental Reserve Quotas (CRA), or through the green bond market (such as the Green Rural Product Certificate).
Based on the description of some cases involving the construction of these new environmental assets in Brazil, the study highlights how both codes – legal and digital – have been mobilised to create priority rights of appropriation over such elements of nature, to the exclusion of all others. This double coding also modulate other attributes inherent to the codification of anything in the world into capital, such as the durability of this priority right over time, universality or the ability to oppose this right against all others, and the convertibility of rights to these assets into an equivalent to allow for exchanges in markets and the construction of wealth, mainly through their conversion into state currency on demand, bringing forward the expectation of future gains.
The very creation of the economic and financial value of nature and its markets depends on digital infrastructure for the massive capture of information about the land and natural resources for the continuous monitoring of dynamic ecosystems, their quantification, standardisation and integration of the various values and metric systems to create an equivalence – such as the tonne of carbon equivalent avoided (1 ton CO2 eq. ev.), and for the emission of assets – such as carbon credits. Digital land registries and interoperability between digital real estate and movable property registries have been used to scale up the definition of land property rights at low cost, but with less durability as it increases the exposure of real estate assets to debt creditors, i.e., financial agents. Digital coding that expands transactions and liquidity in the land securities market, as well as the scale of the land-based debt market, and nature-based markets - which already have PES and carbon contracts registered and recorded in the land registry. And when these intangible assets, represented by digital binary codes, enter into circulation, legal codification could be replaced by digital codification, which is itself a normative system in which the rules of smart contracts are inscribed in algorithms, whose clauses are self-executing in the unalterable ledger of the blockchain. The basic idea is to create a perfect free market, eliminating state intervention and other intermediaries, with almost zero information and transaction costs, in which humans would govern themselves.
With this debate, the research aims to discuss how reducing the ways of valuing nature to its monetary and financial appreciation is producing new enclosures of common goods, plundering present and future generations, especially communities whose way of life is associated with biodiversity. Furthermore, it reflects on the changes that this process generates in land codification, as property and commodity, which has led to changes in the ways in which its productive and financial value is attributed. This can deepen distributive conflicts over the forms of use and appropriation of land income between owners (income) producers (profit), financial agents (interest), investors (part of the income), workers (wages) and society in general for access to food and the ecological functions intrinsic to life.