Scale of Commonality

= The report "The Scale of Commonality – Reform Proposals for Integrating Commons into Law" is a significant French document from 2021 that explores integrating the concept of "commons" into the French legal system.

* Report: Marie Pierre Camproux Duffrène, Véronique Jaworski. L’Echelle de communalité, Propositions de réforme pour intégrer les biens communs en droit. [Rapport de recherche] Mission de recherche Droit et Justice. 2022.

URL = https://hal.science/hal-03718600

Abstract

Translated from the French:

"The research work dedicated to "The Scale of Commonality – Reform Proposals for Integrating Commons into Law" was not aimed at identifying or describing the various concepts within the broader commons framework—such as common goods, shared heritage, common things, or the notion of "commons" (whether in singular or plural form). Instead, it sought to systematically examine the degree of "commonality" in certain legal frameworks surrounding goods or resources. The goal was to make the already existing communal dimension of certain resources more visible, while promoting its recognition and legal protection."

The original in French:

"Le travail de recherche consacré à « L’échelle de communalité – Propositions de réformes pour intégrer les biens communs en droit » a eu pour objet, non pas de mener l’identification ou la description des diverses notions peuplant la galaxie des communs hors et dans la sphère juridique – biens communs, patrimoines communs, choses communes ou communs ou commun (pluriel ou singulier) –, mais d'étudier de manière systématique le degré de « communalité » de certains agencements juridiques autour de biens ou de choses en rendant visible la dimension commune déjà existante autour de certaines ressources et en favorisant sa reconnaissance et sa protection."

Discussion

Scope of the research

Judith Rochfeld:

"The research work, of which the report presented here is the fruit, did not aim to reiterate the description or identification of the various notions that populate the galaxy of the commons - property, patrimony, private common, public common - but rather to evaluate and reinforce, via proposals for new interpretations, reforms of existing texts, or even the introduction of new provisions, the degree of "communality" of certain legal arrangements around goods or things, whether these belong to the environmental, cultural or other spheres; whether they are material or immaterial; appropriated or not. We have indeed become accustomed to grasping our relationships to things through the medium of property - conceived as "the proper" - while neglecting the "common" part that they may conceal. However, they can make room for assignments to a common interest that is socially and legally defined and protected, for the benefit of beneficiary communities (those who are entitled to the use of the thing or to its preservation, deliberative or controlling). In the first, conceptual stage, the report defines the "communality" in question on the basis of two criteria - assignment to a common interest and inclusiveness (the impossibility of excluding others) - and its relationship to property, both private and public, and justifies the use of the "scale of communality" as a measurement tool. It also sheds light on the multidisciplinary and comparative law approaches that have made it possible to construct and test the proposals put forward (Part 1). Secondly, the report presents proposals for reform (Part 2 and Appendix for the proposed articles), in two parts.

First, it puts forward the qualifications for communality. These range from the figure that would express the minimal degree of communality in the form of a primary regime, i.e., the common patrimony (Section 1), to the one that, in a particular way, would emphasize common use and the setting aside of appropriation, i.e., the common (Section 2). It also examines the reorientations that could be proposed for public common (Section 3), without forgetting the various techniques of voluntary appropriation that could be oriented towards guaranteeing the pursuit of a common interest, even inclusiveness (Section 4). For each of these institutions, general reform proposals are put forward, based on the history of the concept, its definition and current regime, and the identification of its deficits. Special reports then outline the implications of these proposed changes for particular areas or objects, following these same steps. Then, in a second section, the report identifies what the perspective would imply in terms of recognition of prerogatives of communality. Beyond the defense of known subjective rights, some of which are fundamental, it could imply the consecration of legally protected interests of a new type, in particular diffuse interests, but also the revisiting of the modes of government of things tinged with communality by declining in this sense the rights of information, of participation, of co-decision and of legal action (Title 2)."

(http://www.gip-recherche-justice.fr/publication/lechelle-de-communalite/)