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

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."

Excerpts

"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."