Scale of Communality

* French Report, L'échelle de communalité - Propositions de réformes pour intégrer les biens communs en droit. mission réalisée avec le soutien du GIP Mission de recherche Droit et Justice (convention n° 217.11.21.25)

URL =

Sous la direction de :

1. Judith ROCHFELD, Professeure de droit privé, Université Paris 1,

Panthéon-Sorbonne, Institut de recherche juridique de la Sorbonne (IRJS),

1. Marie CORNU, Directrice de recherches CNRS, Institut des sciences sociales du politique et
2. Gilles J. MARTIN, Professeur émérite de l’Université Côte d’Azur, GRDEG, CNRS

Context

Marie Cornu, Thomas Perroud et al. on Communality :

"What should we understand by this term?

In an initial approach — one that will, of course, be developed further in the following lines—the term refers to the idea that certain things or goods are marked by a communal dimension. This means they could not only be opened to shared or common use under various modalities but also be protected and preserved for the present and the future, in the interest of all, or of a broader community (national, European, or global), or a more specific community (inhabitants of a town or neighborhood, a creative community, a community of users, etc.).

In the context of this research, we considered that the "communality" of a thing is evaluated based on the degree of openness to the power to decide on its uses; the power to benefit from its utilities; and the power to control these uses and utilities. The less it is legally possible to exclude individuals from exercising these three powers, the more a thing can be said to be communalized. The notion of communality thus refers not only to the idea of a common interest but also to the concept of inclusivity (see below).

From this foundation, the notion of a "Scale of Communality" has been developed, indicating a gradation in the legal forms and scope of this communal destination. This tool has proven to be interesting because it allows for an understanding of the degree of communality in the legal arrangements of various interests surrounding goods and resources (private interests and common interest(s)) and how the law delineates these boundaries: with what legal frameworks, what guarantees, and also what weaknesses."

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Findings

Note 'communal scale' is used here by this ChatGPT translation:

Main figures identified

The “communal scale” tool was therefore used as part of a forward-looking reflection, allowing for a graded assessment based on different parameters (see below), and leading to proposals for potential developments aimed at more effectively recognizing and protecting the common interest. Each section and case study followed the same structure: starting from an assessment of the current legal situation (droit positif), and then presenting reform proposals that were subject to collective discussion.

Through these exchanges, several cross-cutting figures emerged, each illustrated with examples of existing applications or suggestions for future development. The figure of common heritage emerged first, forming an initial foundation of communalization—particularly because French law proclaims certain goods or resources as part of the "heritage of the nation" or "of humanity," though it does not derive specific legal consequences from this. The concept of res communis (common things) was then considered as a legal category to be better defined, particularly in the more limited field of unowned objects.

In addition, public goods and voluntary designation techniques were examined as components of existing regimes that could be redirected toward the defense of common interests. As an extension of these reflections—still from a cross-cutting perspective—further discussions addressed issues such as: the rights or prerogatives to be granted to members of concerned communities, the types of legal recourse available (e.g., injunctions, damages, etc.), and governance models for managing the concerned resources.

Comparative law arguments

The study also draws heavily on comparative legal elements (see Appendices). On one hand, references to other legal systems appear throughout the various developments. For instance:

The discussion of common heritage drew on the "reasonable use of the resource" principle from U.S. legal doctrine, as well as Belgian Council of State case law, which has given legal weight to the concept.

The work on real environmental obligations was inspired by Conservation Easements found in common law countries.

The analysis of water governance incorporated examples of water rights, leading to proposals to recognize special property rights in water.

On the other hand, the report also includes standalone case studies on key legal institutions (see Appendices: Lessons from Comparative Law), such as:

• The Portuguese and Brazilian systems that recognize transindividual interests;

• The U.S. Public Trust Doctrine, used as a model for a legal regime governing common things;

• Legal restrictions on the privatization of public spaces in Anglo-American countries and Germany (via the horizontal effect of fundamental rights doctrine);

And notably, the Italian legal tradition, which has developed substantial theoretical work on introducing a new legal category of beni comuni (common goods), situated between private and public property. One report, for example, focuses on “The recognition of the common interest in relation to fundamental rights within the framework of beni comuni in Italy.”

A reform proposal

This broader reflection led to a series of reform proposals, ranging from reinterpretations or revisions of existing texts to the adoption of entirely new legal provisions. These proposals form the second part of the report and are structured around the primary goal of better integrating commons into the legal system (Part 2: Proposals for Reform to Integrate Commons into Law).

However, before that, the first part of the report lays out the conceptual framework underpinning the analysis and reform proposals, explaining why and how the notion of a “communal scale” was employed (Part 1: The Conceptual Framework of the Analysis and Reform Proposals)."

The four strategies for Communalization

"Four directions are mapped out:

• Common heritage, which already exists in current law (droit positif): The idea is to constitutionalize this notion so that it becomes a foundational legal regime.

• Common things (choses communes), a term that exists in French law but is rarely used and currently has no real legal effect; The proposal is to strengthen its legal effects.

• Public properties, particularly those assigned to the public domain and public spaces: It is proposed that their legal regime be more clearly understood as serving the common interest, and that it become more participatory.

• Voluntary allocation techniques (such as trusts or Gilles Martin’s work on real environmental obligations): The proposal is to reorient these mechanisms toward common-interest goals."

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Contents

Introduction générale

I – Les facteurs de renouveau

II – Choix des objets d’étude et justifications des méthodes

Partie 1 – Le cadre conceptuel de l’analyse et des propositions de réformes

Titre 1 – Propriété et communalité

Section 1. Le paradigme de la propriété exclusive : l’occultation de la diversité et de la communalité

Section 2. Le retournement du paradigme de la propriété exclusive : les modes d’articulation de la propriété et de la communalité

Titre 2 – Les figures propriétaires porteuses de communalité

Section 1. Propriété intellectuelle et communalité

Section 2. Propriété publique et communalité

Section 3. La mesure de la communalité

Partie 2 – Propositions de réformes pour intégrer les biens communs en droit

Titre 1 – Les qualifications de la communalité

Section 1. Le patrimoine commun

Section 2. La chose commune

Section 3. Les biens publics

Section 4. Les techniques d’affectation volontaire

Titre 2 – Les prérogatives de communalité

Section 1. Les intérêts à reconnaître

Section 2. Les prérogatives de gouvernance à reconnaître