Commons as a Legal Concept

* Article: The Commons as a Legal Concept. By Maria Rosaria Marella. Law Critique (2017) 28:61–86

URL = https://www.academia.edu/35969919/The_Commons_as_a_Legal_Concept

Contextual Quote

"I argue that legal tools needed to establish the law of the commons are available right now, in the era of neoliberalism. More specifically, I contend, first, that the legal recognition and regulation of the commons is consistent with the law in force and the current legal regimes of private property, and second, that this present stage of globalization, both in the peripheries and at the core of the capitalist system, is more favourable to the establishment of the ‘law of the commons’ as a possible new area of private law. "

- Maria Rosaria Marella [1]

Description

"Scientific debates about the political, economic and even legal aspects of commons have circulated wherever commons are perceived to pose a challenge to the increasing commodification of people's lives. Indeed, a wide range of commons has emerged worldwide. Emerging commons pose a challenge to the law which is now requested to provide legal tools to resist the dispossession of the common wealth. Nevertheless, commons do not embody a reality which is external or unfamiliar to the law. This paper is an attempt to reframe the commons as a legal concept. In this article I argue that commons are not just a marginal element of contemporary legal systems. Rather, they embody the premises for important transformative practices and discourses and represent a subversive site in the legal order. I maintain, first, that the law of the commons is consistent with the law in force and the current legal regimes of private property and, second, that the current stage of globalization is most favourable to the establishment of a law of the commons both in the peripheries and at the core of the capitalist system. However, given the persistent dominance of the individual-based property paradigm, the legitimacy of the commons on legal grounds remains problematic. Certainly the recognition and protection of the commons challenge the legal regime of property in force and query about the possible limits that the law may impose upon property rights. It is evident that the true core of the commons discourse as a legal discourse rests upon its relation with property and depends on the notion of property that we assume as normative. The Hohfeldian idea of property as a bundle of rights offers a good starting point for articulating a legal theory of the commons under positive law."

Contents

Maria Rosaria Marella:

"The paper is structured in four sections.

The first two sections offer, respectively, a definition and a taxonomy of what can be reasonably conceived as commons at this present time.

In doing so, the first section draws mainly on the Italian experience, which offers some interesting elements both at the political and doctrinal level and is characterized by what I define as a non-naturalistic approach to the commons.

The second section on Taxonomy adopts this particular approach in order to design a taxonomy of resources capable of defining commons in legal terms.

Section three on the Legal Basis of the Commons offers a genealogical account of the commons as an exception to property law and, at the same time, as something internal to it.

In section four on Use versus Ownership I map various legal arrangements that have concretely assigned legitimacy or, more precisely, a legal form to collective rights of use as property rights distinct from property ownership.

In the Conclusion I return to the relation between the discourse of commons and the idea of property as a bundle of rights and consider the issue of urban squatting within the Italian common goods movement as a case study for cross-examining and re-proposing the ‘unbundling’ hypothesis."

Excerpts

By Maria Rosaria Marella:

1.

"Evidence of commons can be found in most legal systems. Collective rights on communal lands have always been enforced in continental Europe, Asia and Africa. Collective properties in Italy, indigenous rights on land in North and South America, as well as collective rights of servitudes or use (such as usi civici in Italy) are currently granted by many national laws. In some cases they are recognized as formal entitlements, in others they are governed through informal practices. While collective rights of access and use are usually presented as a nostalgic throwback to old communal lands, such a narrative is now increasingly undermined by a variety of ‘emerging commons’, such as Common Interest Communities, Limited Equity Housing Cooperatives and Community Land Trusts in North America or Guerrilla Gardens in urban areas worldwide, not to mention intangible commons such as the very many experiences of commoning on the Internet (Wikipedia being just one notable example). The complexity of this situation contradicts any suggestion that commons are either exceptional or a mere legacy of the past.

Recently, a wide variety of legal instruments have been deployed to protect (or re-appropriate) the commons, ranging from property-like or ‘counterposed property claims’, to the denial of private property (such as informality in urban development), by way of creating a legal person out of the common resource to be protected (below ‘Use Across the Subject/Object Distinction’ section). Thus multiple legal tools are available in all legal systems and serve as functional equivalents."

2.

"In this article I argue that commons are not just a marginal component of contemporary legal systems. On the contrary, they embody the premises for important transformative practices and discourses and represent a subversive site in the legal order: commons both challenge the dominance of private property in legal discourse and confront the abuse of intellectual property that has occurred worldwide in the last decades. Even more radically, they disrupt both the subject/ object and the public/private dichotomies. Regarding the former, if we understand the commons as social systems consisting of communities and resources managed in common, it becomes clear that resources and communities are mutually constitutive, to the extent that the distinction between the legal subject/titleholder and the object of the entitlement starts to disappear. Indeed, among the variety of legal arrangements adopted to protect the commons there are some that blur (or flip) the subject/object opposition.

..

The commons as a social entity goes beyond both the individualistic approach to private law and the dogma of state sovereignty in public law. In fact, in modern legal systems, the commons represent the epitome of the crisis of the public/private dichotomy in property law. This is particularly true for civil law systems where the public/private distinction in the allocation of resources radically marked the abolition of feudalism and located itself at the core of the legal system. Conversely emergent commons are now claimed to be located beyond the market/state opposition.

This point was clearly corroborated in 2011 in two important decisions made by the Supreme Court of India and the Italian Supreme Court. The first decision refers to an emblematic example of political corruption involving the transfer from the local government to a private developer of an area located in a village in the State of Punjab, which included a pond that was crucial for local inhabitants as a source of water for drinking, washing and watering cattle. The Court condemned this widespread practice of the public administration and declared the need to protect common rights in order to defend the lives of communities.

The Italian decision is particularly relevant because it offered a first formal recognition of the category of common goods. Examining the claim of a private fishery to an area of the Venice Lagoon, the Court maintained that state properties had to be considered common goods when they were devoted to the fulfillment of people’s fundamental rights (in this case, the right to enjoy the environment).

Despite the dominant account, these judgments show that one does not need to return to a mythical golden age to find the social and political premises for fitting the commons into the legal order, nor is it necessary to wait for a better time (i.e. the end of capitalism) for the commons to acquire legal status."

3.

"This paper is an attempt to reframe the commons as a legal concept.

It moves from the acknowledgement that the many collective initiatives of social struggle and resistance that have occurred across the globe have firmly placed the question of the legal recognition of the commons on the radical agenda. From this perspective, the commons provide a good example of how it is possible to challenge the public/ private and state sovereignty/market divisions as major ideological frameworks that enable the dispossession of what is produced in common.

It suggests that the legal basis for the commons can be mainly traced to within private law and particularly the field of property law. However, the aim here is not to advocate a third type of property in addition to the public and the private. Instead, Hohfeld’s theory of property as a bundle of rights can be usefully applied to unbundle property to provide a theoretical foundation to the commons. The main argument here is that property forms a continuum from individual to collective property and that alongside this continuum different bundles of rights exist in varying degrees. These rights can be rearticulated in the context of the commons and offer a broad spectrum of legal arrangements that ground collective rights of use in the law in force."