Constitutionalization of the Commons in France

Status

2024

Yovan Gilles:

"The title of this meeting will undoubtedly provoke thought at first glance. In fact, the ambiguity surrounding the status of commons and common goods in France currently prevents them from being attributed to any specific legal and/or constitutional category, as is already the case in countries like Italy, Bolivia, Ecuador*, Colombia, New Zealand, and Slovenia.

In recent years, however, there have been several attempts by parliamentarians from across the political spectrum—ranging from center-right to left—sometimes supported by figures from the scientific and intellectual communities or specialists in public law, to propose bills aimed at enshrining commons in the constitution and granting them a legal status. Since 2018, these attempts have failed, often due to objections raised by the Law Commission of the National Assembly or Senate—not on principle, far from it—but primarily because defining the scope of commons and common goods has proven to be complex, as have the potential implications of legal disputes and procedural issues under public and private law.

These relative failures illustrate, first and foremost, the difficulty in defining and delineating the concept of "common good" (both singular and plural). Indeed, it can encompass areas related to the environment—climate, water, forests, biodiversity—as well as public services, which are perceived as being degraded by the financialization of the economy, such as health, transport, culture, energy, and education. Furthermore, in the realm of agriculture, it includes issues such as water conflicts and the free circulation of reproducible native seeds in the face of their appropriation by industrial seed companies.

These challenges are compounded by confusion and conflation between public goods and common goods, as well as concerns about potential infringements on property rights or the rights of corporations and businesses, which already feel impacted by environmental vigilance obligations.

However, focusing on France, historical precedents paradoxically make this reflection both utopian and entirely realistic, though undeniably complex. From customary law in the High to Late Middle Ages to contemporary constitutional law, there have been significant milestones in this area. The law of April 19, 1803, established in the Civil Code (Article 714, still in force) states that "there are things that belong to no one and whose use is common to all." The Napoleonic Civil Code of 1804 defined communal goods as "those whose ownership or products the inhabitants of one or more municipalities have acquired rights to."

More recently, the Constitutional Council's decision of January 31, 2021, regarding the prohibition of pesticide exports, explicitly recognized that "the protection of the environment, the common heritage of humanity, constitutes an objective of constitutional value," paving the way for the constitutionalization of the Environmental Charter in 2005. This has allowed for a new dynamic in case law, though it is far from a panacea.

Meanwhile, in 2023, we witnessed the adoption of an international treaty protecting the ocean (high seas) as a common good, while, conversely, in December 2021, water, for the first time in history, was introduced to the stock market in Chicago, led by BlackRock, a multinational specializing in asset management.

Regardless of these institutional challenges and prospects, it remains undeniable that the commitment of numerous self-organized collectives on a planetary scale in favor of commons and common goods is growing. This is due to their political, social, and ecological significance, as well as their role as laboratories for citizen and democratic governance. Situated outside the public/private and state/market dichotomies, these initiatives operate on various scales: municipal, local, and territorial—particularly in the context of urban and peri-urban commons—and national and global, for natural common goods and global public commons such as knowledge or health in the digital age.

This session thus inaugurates the great debate that the University of the Common Good in Paris proposes to initiate, so that we can make progress together on the issue of the status of commons with respect to our Constitution—a decisive challenge for the future of humanity.

- "Nature, or Pachamama, where life is reproduced and exists, has the right to full respect for its existence, the maintenance and regeneration of its vital cycles, structure, functions, and evolutionary processes." This is stated in the Constitution of Ecuador (2008), the first country to introduce a right for nature to exist for its own sake. The implications of such a right go far beyond a "right to a healthy environment" and include imperatives for conserving and protecting nature for the benefit of humanity and the wealth that can be derived from it."

(email, November 2024)