Theories of the Commons
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* (PDF) L'échelle de communalité - Propositions de réformes pour intégrer les biens communs en droit..
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The Contributions of Theories on the Commons
"In this approach, the various theories developed around the commons can provide valuable resources. They allow us to engage with the subject not through the lens of property, but through that of communal relationships. A range of schools of thought today focus on the sharing of resources and the organization of beneficiary communities, as well as on the conditions necessary to ensure the sustainability of resources. These resources are characterized by being imbued with a common interest, whether this interest is identified by society as a whole — for example, in the definition of historical interest or assets that reflect this interest in law, environmental interest, etc. — or driven and supported by a more limited collective organization, such as a group of residents.
Far from the traditional essentialist approach, which considers certain resources — such as water or air — as "commons" by nature, these schools emphasize the idea that commons are, above all, a socially constructed concept that is legally framed. However, these schools differ in how they envision the recognition of common interest and the organization of conflicting interests. Consequently, there is not one unified theory of the commons but rather several "schools," each conceiving and pursuing the expression of common interest, the division of a resource's utilities among multiple stakeholders, and the organization of this division in different ways and for distinct purposes.
Although the research group did not aim to adopt wholesale the proposals of any specific school of thought to derive direct legal qualifications and frameworks, it was nevertheless considered useful to understand them heuristically and to isolate certain analytical frameworks.
The Naturalist Approach to the Commons
The first approach to the "commons," which can be described as naturalist or essentialist, is set aside from the outset. This approach was previously mentioned in reference to the notion, forged from the 12th century onward, of a "natural" purpose of goods—a notion that became deeply embedded in the structures of Western law. This approach assumes inherent qualities in things or the "status of things" and infers from them a system of shared use. Certain goods were thus deemed "naturally" destined, carrying within them a purpose that limited the "powers of men." This opposition between the "status of things" and the powers of men became firmly established, with the former prevailing over the latter—a supremacy unsurprising in a society heavily influenced by Church practices, where many things were endowed with sacred purposes.
Traditionally, this way of understanding things has also been the lens through which classical legal theory viewed common goods: as things that, by nature, are inappropriable because they cannot be materially enclosed due to their physical characteristics. Alternatively, these goods were described as being in unlimited supply, a feature that made property unnecessary. The reasons for the inappropriability of common goods were therefore sought in their material characteristics: being intangible or abundant, common goods were seen as things that could not or need not be appropriated.
Moreover, this naturalist vein is echoed in the way economists classify public goods: they describe them based on two observable "material" criteria—non-rivalry (use by one person does not hinder use by others) and non-excludability (use by one person does not diminish the ability of others to use it).
However, this orientation faces a significant obstacle today. Beyond the fact that society has moved beyond the theocentric framework previously described, it is difficult to separate the intrinsic characteristics of a thing from the legal policy choices concerning it, as well as from the context that may assign it specific purposes. More broadly, these approaches conflate the descriptive and prescriptive aspects of discourse, assuming that identified "intrinsic" characteristics should dictate corresponding legal frameworks.
The Organizational or Institutional Approach to the Commons
Attention shifts to the organizational and institutional approach to the commons, arguably the most well-known framework. This approach was primarily formalized by Elinor Ostrom and the Bloomington School, followed by others with diverse perspectives. Their initial question, later enriched by empirical studies and field analyses (the team examined numerous cases of collective resource management using a complex empirical method), centered on identifying "the most appropriate property regime to ensure the use of the resource while guaranteeing its preservation and sustainable development."
This endeavor was largely a response to the dominant hypothesis of the time, the "tragedy of the commons," formalized in Garrett Hardin’s 1968 seminal article. Hardin posited that resources left for communal use would inevitably be overexploited and destroyed due to the lack of organization and the focus on individual short-term interests over long-term sustainability. In contrast, Ostrom and her team demonstrated the effectiveness of certain organizational structures in ensuring the sustainability of commonly used and managed resources.
They identified three key characteristics to counter the "tragedy."
- The Resource Structure: Commons are centered around a resource or a set of resources that are difficult to exclude others from accessing (referred to as "common-pool resources," initially analyzed in the context of land-based commons).
- Rights and Obligations System: Commons are embedded in a system of rights and obligations (e.g., access rights, withdrawal rights, governance rights, alienation rights) distributed among multiple actors. Typically, these actors form a medium-sized community (no more than 100 people), ensuring respect for each member’s rights and the resource's reproduction. This aligns with the American realist "bundle of rights" theory, which is both distributive and relational.
- Governance Structure: Commons are characterized by a governance model or "commons-property regimes." Ostrom introduced governance as an organizational framework. The typology of rights she adopted is not limited to describing the property owner’s prerogatives but also distributes the use of the commons among various beneficiaries. Ostrom distinguished between lower-level rights (e.g., access and withdrawal rights) and higher-level "collective-choice rights" (e.g., management, exclusion, and alienation rights).
The latter includes:
- Management Rights: The right to define and modify resource use conditions.
- Exclusion Rights: The right to determine who benefits from usage rights and whether those rights are transferable.
- Alienation Rights: The right to sell or transfer management and exclusion rights partially or entirely.
Ostrom also detailed the governance structure through eight "design principles," which include self-governance, user participation, and control. The members of the community managing the commons are identified and limited in number, emphasizing the existence of a clearly defined community. The rules governing the commons, whether written or customary, integrate into the broader legal framework, avoiding conflict with the state or legal system.
Ultimately, commons are a resource management system governed by organizational rules and operational principles. Ostrom’s theory, originally derived from the study of land-based commons (e.g., fisheries, forests, irrigation systems), was later expanded to include immaterial commons like knowledge commons, characterized by non-rivalry and non-excludability.
While these insights are valuable, it remains challenging to determine how to adapt this theory to create legal tools or criteria for commons in jurisdictions outside the U.S. Nevertheless, some aspects are noteworthy:
The use of a relational theory of property, such as the "bundle of rights," broadens the scope of rights and interests expressed over a resource beyond mere ownership. It includes rights or prerogatives (e.g., access, use, management) of users and decision-makers, in addition to those of the owner.
Emphasis on the organized governance of resources highlights the necessity of such systems to escape the "tragedy of the commons." This governance justifies reinforcing protection regimes for resources deemed common, adopting organizational rules for shared heritage or common goods, or encouraging voluntary systems where owners choose to engage. This governance, however, is not always in the hands of the community members. Mixed arrangements often exist between state rules and self-governance or entirely state-dependent legal frameworks. This broader perspective explains why the research report focuses on "common goods" rather than "commons," as many analyzed figures do not fully align with Ostromian commons but instead reflect a broader societal identification of shared interest (historical, environmental, etc.). Examples include participatory housing projects or freely shared works.
The Political and Critical Approach to the Commons
The Ostromian approach is not the only perspective on the commons. Another, more political conception also holds sway. At its core, this approach emphasizes the processes of commoning and self-governance. Commoning is described as a "world-making process, a collective creation of a social system through experience." It can also serve as a radical political critique of the dominant socio-economic system. The works of Antonio Negri and Michael Hardt on one hand, and Pierre Dardot and Christian Laval on the other, are particularly representative of this line of thought.
Notably, the theorization by Dardot and Laval elevates the commons to the status of a "political principle." They define it as an "institutional space bounded by collectively developed practical rules" and see the commons as "the living connection between a thing, an object, a place, a natural reality (a river, a forest) or an artificial reality (a theater, a public or private building, a service, an enterprise) and the activity of the collective that assumes responsibility for it, preserves it, maintains it, and cares for it."
In this perspective, praxis takes on a central role, while the law is harshly criticized for its role in the construction of the sovereign state on one hand and the exclusive individual owner on the other. Nonetheless, the law is mobilized to shape usage, which, in this approach, occupies a central place as an alternative to ownership: the idea of use as opposed to the right of property, grounded in the notion of the inappropriable — something that generates only a "right of use."
Ultimately, beyond a "redefinition of the right of use," this theoretical framework emphasizes the importance of "an instituting praxis that establishes the rules of common use and extends to an instituting use that regularly revises those same rules," as well as the "co-obligation of the 'common people,' requiring them to use this inappropriable resource in a way that preserves and transmits it."
* Implications for the Legal Construction of Commonality
What insights can this perspective offer for advancing the legal construction of commonality?
Reinvigoration of the Inappropriable: This notion will be reflected in forthcoming proposals under the classification of "common things," with a strengthened regime advocated. However, the scope of this figure will not align entirely with Dardot and Laval’s vision (i.e., it will not encompass a general domain).
The Central Role of Use: Usage, as a figure parallel to and antagonistic to property rights, will similarly inform multiple proposed frameworks.
The Organization of Use: This includes structuring the allocation of resources, at least for their preservation. However, in contrast to the theories presented here, this organization will not always remain exclusively in the hands of community members.
This approach underscores the importance of a collectively governed, sustainable use of resources, challenging conventional notions of ownership and control while exploring legal frameworks to support these principles.
The Teleological and Functional Approach to the Commons
A final approach, previously mentioned and one that has primarily mobilized legal scholars, focuses more directly on the function of goods in serving people. This perspective is embodied in the work of the Italian Commission for Public Property Reform (Commissione sui beni pubblici), established in 2007 under the Ministry of Justice and chaired by Stefano Rodotà. The Commission aimed to reform the regime of public goods but ultimately set out to establish a new legal category: the beni comuni (common goods). Alongside public and private goods, the Commission defined common goods as any goods necessary for the fulfillment of fundamental human rights and personal development, assigning them a legal regime designed to achieve these objectives.
* Definition and Scope of Common Goods
The definition of common goods encompasses "anything that expresses a functional utility for exercising fundamental rights and the free development of the individual." To address critiques of vagueness, this definition was supplemented with a non-exhaustive list of examples, including:
- Rivers and their sources
- Lakes and other bodies of water
- Parks as defined by law
- Forests, wooded areas, high mountain zones, and glaciers
- Natural reserves, wildlife, and protected flora
- Archaeological, cultural, environmental, and protected landscape assets.
Common goods are characterized by their indispensability for exercising fundamental rights.
* Legal Regime
The regime for common goods is tied to their function:
Ownership, whether public or private, is coupled with titularity, meaning that common goods can belong to public or private entities, but "in all cases, their collective function must be guaranteed within the limits and according to the modalities established by law."
They are rendered inalienable and unavailable due to their collective purpose. The legal system must protect and safeguard these goods for present and future generations.
Legal action is possible to ensure their appropriate use and allocation.
* Impact of the Commission’s Work
While the Commission’s proposals were not formally adopted into law, they significantly influenced Italian legal doctrine and jurisprudence. Notably, in 2011, the Italian Court of Cassation issued three rulings recognizing as "common" any good that, "independently of ownership, is, due to its intrinsic characteristics—particularly environmental and landscape features—intended for the realization of the social state." These rulings emphasized that the interests served by such goods are protected as fundamental rights under Articles 2 and 9 of the Italian Constitution. This recognition expanded the legal regime of public domain goods to include common goods, thereby asserting that the state's ownership implies governance responsibilities ensuring effective public use and enjoyment.
* Lessons for France
What insights can this approach offer for the French legal context?
Recognition Beyond Ownership: The Italian framework highlights the possibility of recognizing other forms of titularity beyond ownership. However, in the Italian model, this relies solely on the consideration of individual fundamental rights.
Emphasis on Usage: Usage, as a concept parallel to and often in opposition to property rights, takes a central role in this approach. It could inform various proposed legal regimes.
Resource Allocation for Preservation: Organizing the allocation of resources remains a priority, at least for their preservation. Unlike the Italian framework, this organization need not always reside exclusively with community members.
* Broader Implications
These contemporary theories on the commons draw attention to the social, political, and legal content of common interests. They emphasize identifying these common interests for legal protection, whether they already exist in positive law and require better articulation or remain to be recognized.
They invite reflection on:
- Alternative ownership structures that transcend the traditional relationship between an owner and their property.
- The dissociation of property rights from other forms of titularity.
- The organization of these arrangements to balance competing interests.
The objective is not to directly adopt any one of these approaches but to draw inspiration from them in constructing legal frameworks and criteria for commonality. Before presenting these legal figures and criteria, it is essential to revisit ownership models that, despite being influenced by dominant paradigms, continue to embody elements of commonality."