Providing Direct Access To Social Justice By Renewing Common Sense: The State, the Market, and some Preliminary Question about the Commons



Introduction. Dominant wisdom.

Social justice is pursued in Western democracies by the (currently declining) institutions of the Welfare State. Access to social justice programs are usually understood as provided by “rights of  second generation.” These social rights are not merely negative (shields against infringement), like property rights, but are considered positive i.e. requiring a specific obligation of the State.

This vision, which places the specific burden of satisfaction of social rights on the State, is coherent within the evolution of Western jurisprudence.  Since the Scientific Revolution and the Reformation, social justice has been expelled from the core domain of private law[2]. The Scholastic notion of law, still rooted in the Jesuit jurists of Salamanca (XVI century) according to which there were two concepts of justice—distributive justice and commutative justice— was abandoned entering into a modern Western jurisprudence.  Starting from Grotius (XVII century), concerns over justice were equated to issues over fairness in contractual exchanges entered into by individuals. According to this vision, distribution, which was intended to pertain to the whole society and not just to its parts, was considered an exogenous factor, and hardly ever critiqued within the core of the law made as it is on contractual and property rights. Since Grotius such “reduction” of justice from the distributive to the commutative sphere (from the whole to the parts) was assumed as natural, as common sense entering into the dominant wisdom: distributive justice was expelled from legal science.  Economics itself, developed as an autonomous branch of knowledge in the eighteenth century, also shared and continued to strengthen such a vision[3]. According to this dominant wisdom, issues of distribution cannot be part of a scientific discourse based on positivism. Distribution is considered entirely in the domain of the “ought to be” and not of the “is”; of political values rather than empirically measurable facts. As a result of the dominance of individualism as the foundation for the rights discourse, distributive justice became a matter of politics to be dealt with (if at all) by State institutions of public law. The birth of the Welfare State in the early twentieth century was thus considered as an exceptional intervention by regulation (by means of fiscal policy) into the market order, with the specific aim to guarantee some social justice to the weaker members of society. In the West, since then, social justice was never able to capture again the core of legal discourse, and consequently has remained constantly at the mercy of  fiscal crisis: no money, no social rights![4]

The most recent fiscal crisis has  been no exception.  In the wake of urgent challenges to both the European Union and the global system, the inadequacy of both state and market mechanisms has become increasingly evident. Such a crisis present a ripe setting for rethinking the unnatural zero sum relationship between fiscal crisis and social justice, in order to restructure institutional arrangements on both domestic and global levels. The concept of the commons can provide today exactly the necessary tools, both legally and politically, to addressing the increasing marginalization of social justice under crisis capitalism. Being outside of the State/Market duopoly, the Commons, as an institutional framework, presents an alternative legal paradigm, providing for more equitable distribution of resources and as a direct consequence, social justice.

The current vision presents the opposition between “the public” (the domain of the State) and “the  private” (the domain of the market and of private property) as exhausting all the domain of possibilities (in  a sort of zero sum game). This gridlocked opposition is a product of the individualist tradition still dominant today in law and in economics. The discourse around the Commons attempts to overcome this assumed traditional equivalence between public sector and the State, as well as rejects the role of the Market, in so far as it reduces individuals from citizens (an entity of rights) to consumers (entities functional to the ends of capitalism). The Commons bypasses these mediating forces of market and State, thus presenting a worldview that reunites individuals to collective action in a direct relationship. The Commons (water, knowledge, health, energy and cultural heritage also known as common pool resources within the “institutional analysis” of Ostrom)[5], are resources which belong to the people as a matter of necessity, depend upon free access, and do not depend upon the special intervention of state and market forces. Consequently, they do not depend on the fiscal availability of resources. They are not concessions. If properly theorized, the Commons can serve the crucial function of reintroducing social justice into the core of the private law discourse.  However such a shift, requires a significant break with the dominant wisdom which assumes that management of resources  must be mediated through either the state or private property.  How can the Commons overcome this “dominant wisdom,” to carve power away from private property/market and the State, and  transfer it directly into the hands of the people?  Overcoming the dominant wisdom includes several steps: 1) a need to see and recognize the Commons that are already providing us with a resource 2) an unearthing of the source of the dominant wisdom in the Western Legal tradition that assumes the management of resources must be mediated through the state and/or market and 3) to encourage a more holistic paradigm which uses the ecosystem as a model in forming an alternative legal institution of the Commons.

Seeing the Commons

The first step in overcoming the dominant wisdom is to “recognize” the commons that are already present.  The commons provide services which are often taken for granted by their users: those who benefit from the commons do not take into account their intrinsic value, only acknowledging it once the commons are destroyed and substitutes need to be found.  To some extent, the universal services provided by common goods are similar to household work, never noticed when the work is being done. Only when no one is there to do the dishes, you notice its value.  In other words you don’t miss something until it is gone. Two striking examples of this feature are represented by mangroves and by coral barriers: people living on the coasts are not able to estimate the value of the services they provide simply because they don’t even know that these goods have a specific function, that they are doing something for them. Only when a Tsunami hits, destroying villages, the value of such vegetation becomes apparent.  Similarly, when Italians destroyed the coral barrier so as to let great cargo-boats dock in Mogadishu and load them with their colonial plunder, they in fact had opened a way for sharks who flocked in, attracted by the nearby slaughter-house blood that was shed into the sea. Mogadishu’s beach thus became one of the most dangerous places in the world to swim. Recreating a barrier to keep sharks away from the coasts would require now huge investments technologically and financially. This example demonstrates how the value of a common good is only acknowledged once it runs out and need to be substituted. In the same manner, mangroves have been destroyed to breed shrimp.[6] However, prior to their destruction, mangroves played a major role in protecting coastal villages from tsunami waves. Again, it would be highly expensive to build a similar barrier artificially.

Public awareness of the fundamental role/value of a Commons may only be pursued by investing on the side of demand, acting in such a way to make people acknowledge the importance of their services. As mentioned above, if Commons do not seem to produce any return, this is simply because their users are not aware of the huge benefits that can be derived from them.  They are indeed essential in satisfying basic human needs. Only their recognition can mobilize  society to save them and expand their domain.

Unearthing the Source of the Current “Dominant Wisdom” in the Western Legal tradition

It could be said that the commons are disappearing as a result of a structural  incompatibility inherent in the deepest aspects of the Western “legality,” a legality that is founded on the universalizing and exhaustive combination of individualism and the State and private property/market dichotomy.

Centuries before, in ancient Rome the early clans routinely extended their landholdings by usurping the commons and the privatization of the commons was already described by Engels as the most fundamental economic pattern of European development. Thus Western law has served a very important role in destroying the commons, certainly not in protecting them[7]. This still seems to be the pattern of development in cognitive capitalism[8]: think about prosecution of peer to peer internet exchanges.

Furthermore, given the institutional framework seeking the solution of conflicts between private owners (individual bearers of property rights), in practice it has always been problematic for the commons to find someone that would represent it in court, by suing those who tried to seize them. Both historically and today, those who benefit most from the commons are not “owners” in the technical sense, but usually poor farmers (or today young internet surfers) with no means of getting into the court system. Let’s remember how easily such farmers fell victim to the enclosures in England, the crucial phase in the development of early capitalism which provided the necessary proletarian workforce for the rising manufactures. Such enclosures and such violent production of workforce from dispossessed peasants would simply have been impossible outside of the fundamental alliance between private ownership and the State. [9]

The commons as diffused-power (or absence of hierarchical power) is also structurally incompatible with the adversary idea of the Western trial. The structure of the adversarial trial as a zero sum game requires an interest to act that must be specifically referable to a specific individual. The commons, characterized by its diffused access, “belonging” to all, prevents it from appointing anyone that could be considered a holder of such a special interest and thereby legitimizing his/her presence in court. In other words, in a trial conceived of as a zero sum game, between a winner and a loser there is no space in the court for the commons framework (except from special technical-trial mechanisms as the class actions, developed as an exception and very recently). It is the issue known in the American legal debate as the “standing to sue” : who among the enormous number of beneficiaries of drinking water (or fresh air) could differentiate enough of his interest from others, in order to become its savior, exercising his/her right to a hearing?  Such a problem has a big practical impact because Courts are reluctant to admit anything that departs from the archetype of the zero-sum game, a problem that different legal systems solve (when they do) as an exception rather than as a formalized rule.

Piercing the Veil of the State v. private property (market) Dichotomy

In 2010, we can see that the state v. private debate presents a false dichotomy, a distinction without a difference. The state is no longer the democratic representation of the aggregate of individuals, but instead a market actor among many (Coase).   The collusion or merger of state and private interests, with the same actors (corporations) on both sides of the equation, and the technocracy developed to veil the political nature of this centralization of power, leaves little room for a “commons” framework, no matter how convincing the evidence about the benefits may be.

Private property and the State in their various forms are the two major legal and political institutions that carry on the dominant view of the world. The common wisdom, founded on the longstanding dualistic and reductionist opposition between state and market, shows them to be radically conflicting. It assumes, in a cryptic way, that state and the market have a zero-sum relationship: more state is equal to less market and less market is equal to more state. In this reductive scheme the state and private property become quintessential of public and private poles of opposition.  Of course this picture is totally false on both historical and modern levels because the two entities, as social and living institutions, can only be structurally linked in a relationship of mutual symbiosis. The fabricated clear-cut opposition between the two is a precise ideological choice of the individualistic tradition[10].

However, its historical falsehood is irrelevant in reflecting the hegemony of a given political discourse, so that the pervasiveness of state and private property, respectively, as representatives of public and private leaves no room for any third gender. This firmness and this reduction of the analysis and practice are actually the product of a common structure of property (market) and sovereignty (state) aimed at the concentration of power. Private structures (corporation) concentrate their decision making and power of exclusion in the hands of one subject (the owner) or within a hierarchy (the CEO). Similarly, public structures (bureaucracy) concentrate power at the top of a sovereign hierarchy, symbolized by the exclusion of any other decision making entity within a given sphere of jurisdiction (the model of territorial sovereignty and its political-administrative elements).

Many scholars, in particular Kenneth Galbraith, argue that the development of the private sector (determined by marketing techniques) requires a similar development within the public sector (which is, still, insufficient due to the lack of proper marketing investments).[11] Here, Galbraith assumes a structural equivalence between the private sector and the public one, among which the former relies basically upon the idea-archetype of private property, whereas the latter relies upon the archetype of state sovereignty. Both archetypes are inserted into a fundamental structure: the rule of a subject (an individual or a company from one side, the State from the other side) over an object (a private good, a piece of property from one side, a territory from the other side). However, any structural dichotomy between public sector and private sector and the assumption that one is structurally opposed to the other is indeed a political and a cultural invention. Such opposition between two domains sharing allegedly the same structure does not exist but is a result of  Western reductionist, quantitative, and individualistic thought. Hence, to some extent, the marketing pursued from time to time by the public (hierarchical and bureaucratic) sector may be called indeed propaganda, in so far as it does not introduce any relational ambition upon individuals, enabling some qualitative transformation of their being together, but rather tending to limit itself to the promotion of more individualism and consumption-based values.

Most of the goods produced by the current capitalist model of production – e.g. a new model of car, branded shoes, the umpteenth mobile phone – do not represent a need, either private or public. From the State perspective, nonetheless, these goods are needed in so far as their production boosts growth and development of the national economy. In this regard, “growth” is again conceived of as a merely quantitative function (production for the sake of production), which is a now completely irresponsible ideology. The need for private goods is created (or invented) by manipulating demand by means of specific and massive investments called marketing. Marketing is designed to persuade consumers to think that they need superfluous private goods and that these serve a precise useful function in satisfying their desires and wants. In some cases, marketing activities increase the consumption and accumulation of private goods as if there was a need for them, thus damaging the commons (such as in the case of commercial adverts of bottled drinking water). The individual isolated from his community in nature succumbs finding himself functional to the production needs of capitalism, aimed at selling its products to the “lonely crowd.”[12] Precisely in order to invent new private wants and needs the strategy of marketing was developed.  Marketing produced consumer behaviors with devastating ecological effects by creating false images and materialistic myths of an egocentric and narcissistic character.  The individual left alone, narcissistic and wanting, finds in products, in goods, in objects, rather than his fellow man or the environment which sustains him, his social contractual relationship.  His own major relational horizon is determined “objective” by the system of prices to be paid for the satisfaction of various increasingly complex “needs.”

Marketing is also used to promote the public sector. This is sometimes required in as much as the amount of goods produced by the private sector is so huge (e.g. cars) that the development of the public sectors activities (e.g. building parking lots and roads) is vital to repair (e.g. fostering sales of cars) to such over-abundance of production.  Often, in these cases, state focused marketing is rather called propaganda. Such marketing both by the private and public sectors, is resulting in the overconsumption of common goods and their destruction and through market mechanism is distributing them unequally to the wealthy, depriving the poor of basic necessities.

The typical individualistic ‘fiction’ of the liberal tradition (the myth of Robinson Crusoe) disconnects need from real survival necessities (the necessities that can be satisfied in the qualitatively different but quantitatively constant way) and ‘invents’ the need in function of  its very  satisfaction (supply side economics). Thus here, it becomes clear that a qualitative paradigm submits to a quantitative one, because the more a need is induced, the more it grows, and the more money can be collected to fulfill its satisfaction.  Unfortunately, ecology and ‘systemic’ thinking  – the paradigms capable of revealing that these dynamics of individualistic accumulation are devastating for community life – are notably absent in contemporary politics, which has elected  the “social sciences” (particularly microeconomics, political science and marketing) as its only repository of ideas (or as its ideological apparatuses in Althusserian terms). Contrary to Garrett Hardin’s famed phrase in the  “Tragedy of the Commons,” “a commons is a place of no law and therefore ruin,” it seems that state and market mechanisms, which rely on the “individual” as its object, are in fact the culprits of this ruin today. “Privatization usually provides incentives for rational exploitation of the resource. If the owner has property rights in the resource and those rights are tradeable, both the costs and benefits will accrue to the same owner and will be reflected in the market price of the resource, giving the owner the pecuniary incentive to refrain from destructive use. These incentives, however, are not necessarily consistent with sustainable use.”[13]

Tragedy of the Commons: Two World Views in Conflict Competition v. Cooperation

As Adam Smith put it, “We are not ready to suspect any person of being defective in selfishness.”[14] To put is quite simply, this is the central assumption underpinning Hardin’s analysis. Only the crude application of the model of homo oeconomicus [15], an individual maximizer of short-time utility, explains the results (and academic success) of the so-called “tragedy of the commons.”[16] In fact, the well known parable of the microbiologist Garret Hardin, presented to the public in a famous essay in 1968, now “refuted” by Nobel laureate in economics (2009) Elinor Ostrom, has  perverted the ordinary wisdom  to see the commons as a place of no law[17]. According to Hardin, a common resource, as freely appropriable stimulates the opportunistic behavior of accumulation and ultimately destructive and “inefficient” consumption. This reasoning conjures up the image of a person invited to a buffet where food is freely accessible, and rather than sharing the bounty with others, rushes to try to maximize the amount of calories that can be stored at the expense of others, efficiently consuming the largest possible amount of food in the least possible time.

Hardin & Olsen (free rider theory) in their models assume a) that humans are “rational actors” in the sense that they are wealth maximizers b) that self interest has nothing to do with community interest c) communication and its role in trust building are not considerations d) all commons are open access regimes rather than common property regimes which have established rules of benefits and responsibility. The sense of limits set naturally within a community of respect towards others and nature is excluded from their model, failing to consider the qualitative relationships essential to an analysis of a community resource management based on participation of a (still) civilized human being.

The “Tragedy of the Commons” highlights two worldviews in conflict. The dominant worldview being substantially based on the Darwinian idea, which makes “competition,” “struggle,” and “emulation” between physical and legal persons the essence of reality. The other is a  recessive view, which vanished from practice in the West long ago (and is under attack in places such as the African or Andean village community where it is still partially resistant); this view is instead based on an ecological and holistic view of the world and displays relationship, cooperation and community as its typical pattern.  The dominant model is constantly proposed in the rhetoric of growth, progress and development (synonymous with one another as ways “up” and “out” of poverty) used by government, non- governmental organizations, and the media, despite the current catastrophic ecological and economic situation in which we find ourselves. This dominant model considers the alternative one as the legacy of a medieval political-legal experience, where feudal fragmentation of power is maintained, paternalism dominates in a view of society at odds with the modern liberal conception of governance.  To be sure, at a purely analytical level, in the recessive model we find at the center of social life the pre-state guild community. [18] There are a number of possible narratives capable of explaining the abandonment of this community based model in the West, the most relevant for our purposes is a economic historical narrative which views  its demise as the product of  “progressive” modernizing  market forces relying on state-wide political institutions. It is a fact that the alliance between state institutions and private property interests has been the force behind the race for colonial plunder and increased concentration of capital (the original accumulation of Marxian memory)[19]. The recessive model, still present in the organization of communities in the “periphery” (the West being the center) suffered and continues to suffer a merciless assault by the structural adjustment and comprehensive development plans of the World Bank and International Monetary Fund, protracting the model of the early enclosures to the very present.  Such mechanisms have encouraged and resulted in the “commodification” of land, and of local knowledge, supported by a process of cultural adjustment (human rights, rule of law, gender equality etc. ) that serves as justifying rhetoric for continuity in plunder[20].

Going Beyond the Tragedy

Elinor Ostrom and her team of social scientists successfully dispelled the myth, established as truth by Garret Hardin’s “Tragedy of the Commons,” of the superiority of private property rights in resource management.  She demonstrated through an overwhelming amount of empirical evidence that cooperative property arrangements are in fact successful, and that Hardin’s case rather than been the rule, as previously believed, is in fact an exception and only apply to a minority of situations.   While Ostrom’s work undeniably marks a critical turning point in  economic theory, it still remains trapped between the state v. private dichotomy.  Without consideration of the historical, political, and legal context of the fierce public and private debate, Ostrom’s findings remains limited in their applicability. Property law from its early development in the West (Rome & English Feudalism) acted to justify the power of dominant sovereigns over weaker subjects in the effort to secure resources.  Property law continued to persist in this direction by “terra nullus” doctrines during the period of Colonialism.  In more recent times, such  domination has taken on a more subtle and hegemonic form. When viewed in context, Hardin was far from the naïve microbiologist who happened to find applicability for evolutionary theory in the realm of political economy, rather he contributed to a long lineage of economists and lawyers, securing a place for radical individualism and eventual dismantlement of the public domain in favor of private interests. Hardin’s work contributes to the work done in the 50s and 60s by Freidman, Buchanan, Tollock, and Olsen of the radical individualist school and early neo classical economics that eventually led in the 70s and 80s to the Chicago school,  and the Law and Econ movement with its primary purpose of dismantling the public in favor of private interests.

Given the pervasiveness of the false opposition of: state v. market/private property and competition v. cooperation, individual v. community, one should be suspicious of taxonomies trying to make order out of many types of commons (natural commons – environment, water, etc.. – vs. social commons – culture, knowledge, historical remembrances) that do not fully embrace the needed shift to a more phenomenological understanding of our current historical moment. These suggestions (and much of the Nobel prized liberal literature on the commons) should be thoroughly examined critically so as to avoid reproducing again the traditional mechanistic view, the separation between object and subject and resulting commodification.[21] Alongside the empirical data now available, we must critically assess our current institutions and reclaim our common sense about the issue of resource distribution, perverted too long by the neo liberal agenda.  The commons project must be as much about a new framework for participatory government as alternative property arrangements. In Notebooks Gramsci explains his notion of common sense, which refers to ” the philosophy of the non-philosophers.”[22] In other words when a certain ideology filters into the mass consciousness and is naturalized into the “common sense.” Gramsci explains that the task of renewing the common sense depends upon the articulation by intellectuals of a counterhegemonic narrative capable of challenging the status quo. The holistic revolution, or ecological view of the world may present exactly the narrative capable of renewing the common sense and paving the way for the commons.

The Holistic Revolution: Rehabilitating the Common Sense

Interestingly enough the counterhegemonic narrative to the cornerstone of individualism, private property, and competition originated in the sciences. Holistic attitudes, based on the qualitative mapping of relationships, rather than on quantitative measurements and the positivistic reductionism of Galileo, Descartes, and Newton, also eventually emerged in the natural sciences through physics and systems biology.[23] Quantum mechanics in particular, and Einstein’s relativity, have caused an epistemological revolution which such newer disciplines as cognitive science and consciousness studies are attempting to address.  This holistic revolution, on the philosophical level has ancient roots, from Aristotle’s ontological investigations to later philosophers like Husserl and Heidegger, who employed concepts  of phenomenology such as “fundierung”[24] and  ‘relevance’  to  signal the end of an “objective” world where subjects are separate from their objects of observation or in other words, individuals from their very environment. Similarly Bordieu describes as a contrast between substantialist mode of thinking that recognizes “objective” things only observable through direct observation, and a relational mode of thinking that “identifies the real not with substances but with relations.”

Regardless of the richness of the imprint that this holistic revolution has made in these disciplines, this revolution has yet to be embraced in the social sciences, let alone in politics and society. Here, the Anglo-American empiricist tradition (with roots in Baconian scientism) still dominates the academic landscape especially in economics, political science and sociology and also in the Anglo-American analytical philosophical traditions. And this approach dominates today in law.

The commons can be described only from a phenomenological and holistic perspective and it is therefore incompatible with the above mentioned reductionism. The commons are radically incompatible with the idea of individual autonomy as developed in the rights- based capitalistic tradition. An ideological tradition born out of enclosures and destruction of the commons for purposes of plunder.[25] In this respect, commons are an ecological-qualitative category based on inclusion and access, whereas property and State sovereignty are rather economical-quantitative categories based on exclusion (produced scarcity) and violent concentration of power into a few hands. Commons represents a shift from anthropocentrism, constructed as the domain of the rights bearing individual to eco-centrism constructed as the domain of communal duties towards its members and the environment. As Josee Johnston says about ecocentrism:

“To be ecocentric, rather than anthropocentric, does not mean that one can stop thinking like a human, but rather, it means that we deliberately resist the tendency to prioritize human needs above all others.  Like racism, or sexism, or classism, anthropocentrism doesn’t mean it is possible to completely abandon our own positionality.  But it does demand that think about how our privilege- as men, or as a global elite, or as white people, or as humans- allows us to dominate others.” [26]

Generally, the sustainable development discourse does not challenge the hegemonic anthropocentrism that underlies capitalist commodification, it is almost so obvious as to go unnoticed in the common sense.

All this, evidently requires the jurist’s attention to the difficult and urgent task of constructing the new foundation of a legal order capable of transcending the dualisms discussed inherent in the current order. Given the dominance of private property, individualism, and competition as the basis of the current legal order, the new order must correct this imbalance by  focusing on the collective and the commons as the center, creating an institutional setting reflecting long term sustainability and full inclusion of all the global commoners especially the poorest and most vulnerable. To do so we need first an epistemic (and political) emancipation from the predatory appetites of both  the State and private property, the two fundamental components of the dominant imperialistic Western wisdom.

The creation of a demand for commons requires a specific investment, which can be described as a “critical culture,” representing a commons in itself. Common goods lie beyond the reductionist opposition of  “subject-object”, producing the commodification of both. Commons, unlike private goods and public goods, cannot be turned into commodities. They express a qualitative relation. It would be reductive to say that we  have a common good: we should rather see to what extent we are the commons, in as much as we are part of an environment, an urban or rural ecosystem. Here, the subject is part of the object. For this reason commons are inseparably related and linked individuals, communities, and the ecosystem itself.

Political Shift

Today we can see from examples all around us, from global warming to the economic collapse, that the politically recessive but philosophically more sophisticated holistic paradigm offers us a fundamental and necessary shift in the perception of reality. In this context the commons can offer an institutional setting reflexive of the need to reject the false illusion of modern liberalism and rationalism. This is why we cannot settle to see the “commons” as a mere third way between private property and the state as most of the current debate seems to suggest. To be sure, in the current academic resurgence of interest (celebrated by ideological apparatuses of global power, such as the Nobel Prize) the commons are reduced to an institutional setting proposed to manage the leftovers of the Western historical banquet which occupies with States and private property (the mythological market) almost the totality of the political scene.  To the contrary we believe that the commons must be promoted to an institutional structure that genuinely questions the domains of private property (and its ideological apparatuses such as self-determination and “the market”) and that of the State: not a third way but an ecologically legitimized foe of the unholy alliance between private property and the state. The commons should become an alternative legal institution, based on a different world vision, capable of returning the power to the people (including the poor) to directly participate in the  management and control of what belongs to them as parts of a human and ecological community.[27] Within such a vision of the commons, social rights are secured within institutional settings that do not require the mediation of the State.

The shift that we need now to accomplish politically, not only theoretically, is to change the dominant wisdom from the absolute domination of the subject (as owner or State) over the object (territory or more generally the environment) to a focus on the relationship of the two (subject-nature). From anthropocentrism, constructed as the domain of the rights bearing individual to eco-centrism constructed as the domain of communal duties towards its members and the environment.  We need to generalize an idea based on something like reciprocal care,( nutrition) within a type of dependence between the individual and earth which is either symbiotically or parasitically relational. We need a new common sense recognizing, outside of the Western liberal hubris, that each individual’s survival depends on its relationship with others, with the community, with the environment. The first necessary shift that becomes apparent is the move from a focus on quantity (the fundamental idea of the scientific revolution and of capitalist accumulation)  to quality a key notion of the alternative holistic vision.  Care, nutrition, and dependence are qualitative kinds of relationships, while the requirements of survival, as measured by the dominant technological perspective, are met in terms of a quantity constant for each individual entity  (liters of water, Calories…).  Quality differences belong to relationships and patterns, not to individuals, and thus cannot be accumulated.

Common property frameworks must use the “ecosystem” as a model, where a community of individuals or social groups are linked by a horizontal mutual  connection to a network where power is dispersed; generally rejecting the idea of hierarchy (and competition, produced by the same logic) in favor of a participatory and collaborative model, which prevents the concentration of power in one party or entity, and puts community interests at the center. Only in such a framework social rights can actually be satisfied.  In this logic a common (water, culture, the internet, land) is not a “commodity” but rather a shared conception of the reality which radically challenges with the arms of critique and sometimes with the critique of the arms (many movements of resistance especially in the South of the world are motivated by the defense of commons especially land and water against the rapacity of crony capitalist governments) the seemingly unstoppable trend of privatization\corporatization.  This does not mean that a radical change of conception refusing all sorts of privatizations means a return of management to a bureaucratic, authoritarian or collusive public sector. Nor do we mean that the pre-enclosure commons can be restored by a return to a pre-modern logic. Rather we believe that we finally need a catalogue of best legal practices in participation to the commons in order to free ourselves from the ideology of the zero sum game between the market and the State. By understanding these genuine alternatives to corporatization we can develop and offer a viable legal and political alternative legitimized by the needs of survival of life on Earth.


For the time being the way forward seems a highly diffused form of institutionalization of participative governance, stemming from spontaneous practices of struggle, able to engage directly in a cooperative spirit users and worker communities, in a dialectic capable of claiming back new turf for anti-corporate systems of production: As Article 43 of the Italian Constitution of 1948 clearly states : “For the purpose of general welfare the law can originally reserve or subsequently transfer through taking with compensation to the State, public entities or communities of workers or of users certain enterprises or categories of enterprises sharing aspects of fundamental general interest dealing with essential public services or with energy sources or with monopolies”. Today in Italy an impressive movement against privatization of water and corporatization of the public utilities has collected almost 1.5 million signatures to reverse a predatory law, making it mandatory the sale to corporations of public utilities, including the national water supply.

Political clarity on this point is essential because even today, despite the dramatic crisis of 2008, when the free market ideology has shown its catastrophic nature, State intervention dubbed Keynesian policy,  has been utilized to transfer massive amounts of public money to the private sector. The logic of plunder shared by both the private and the state sector could not be more open. It should be clear that what we need is rather a very large extension of the commons framework to subvert the domination of private property (with its rhetoric of autonomy and of the rule of law) currently sustained by both the State and the market. Commons expansion favors the opposite logic of authentic participatory democracy in both the State and market domains. The agenda of  “less government, less market, more commons” is, we believe, the only way to resurrect an alternative narrative of social inclusion (and direct satisfaction of social rights) capable of re-gaining hegemony. Translating these preliminary observations into an actual legal and institutional agenda able to obtain inclusion of those must vulnerable is no easy task, however if we are truly to understand the role of common assets in combating poverty and securing access to rights for the weak in society, we must unearth the legal and economic structural deficiencies at the heart of the issue.

[1] Alfred and Hanna Fromm Chair of International and Comparative Law, U.C. Hastings.; Professor of Civil Law, University of Turin; Academic Coordinator, The International University College, Turin. This paper was prepared as part of the project “Human Rights of People Experiencing Poverty, organized by DG III Social Cohesion of the Council of Europe. I wish to thank Saki Bailey for long term discussions with me on these ideas  and all the participants to the project for the fruitful discussion in Paris.


[2] See James Gordley, The Philosophical Origins of Modern Contract Doctrine, 1991

[3] See Mark Blaug, Economic Theory in Retrospect, 1st ed. 1962

[4] See Ugo Mattei & Fernanda Nicola,  A Social Dimension in European Private Law?. The Call for Setting a Progressive Agenda, 45 New England L. R. 1-66 (2006)

[5] See Beniamino Lapadula & Laura Pennacchi, Privato, Pubblico, Comune. Lezioni dalla crisi globale, Roma, 2010.

[6] Lester R. Brown, Plan B 4.0. Mobilizing to Save Civilization, Norton & Company, New York – London, 2009.

[7] Friedrich Engels The Mark. in Socialism. Utopian and Scientific , 2006.

[8] James Boyle, The Second Enclosure Movement and the Construction of the Public Domain, in 66 “Law and Contemporary Problems”, 2003. 33-75.

[9] Michael Tigar, Law and the Rise of Capitalism, 1977.

[10] This conflict is at the very origins of liberal individualism. Locke and Hobbes would be the two champions respectively of private property and of  State sovereignty. See C.B. Machpherson, cit. supra.

[11]  John Kenneth Galbraith,  The Affluent Society, 1958

[12] David Riesman, Nathan Glazer, Reuel Denney, The Lonely Crowd. A Study of the Changing American Character, 1950

[13] David Feeney, Fikret Berkes, Bonnie J.McCay, and James M Acheson, “The Tragedy of the Commons: Twenty-two years Later,” Human Ecology, Vol. 18, No. 1, 1990. These authors are part of Ostrom’s research team and apply an institutional analysis based on case studies performed over  several decades.

[14] Adam Smith, On the Wealth of Nations.

[15] The concept originating in the work of John Stuart Mill, and in the 18th century brought into mainstream political economy by Adam Smith and David Ricardo.

[16] Garrett Hardin, The Tragedy of the Commons, “Science”, 13 December 1968, pp. 1243-1248,

[17] See Elinor Ostrom, Governing the Commons. The Evolution of Institutions for Collective Action, 1990

[18]   The medieval life experience in the city was carried out almost entirely within communities (the guilds) where the professional life of individuals was shaped by the group preferences expressed by those pre-state organizations. Similarly in the countryside the peasant enlarged family in its relationship with the master was the defining authority. See Paolo Grossi, L’ordine giuridico medievale,  2000.

[19] See Sandro Mezzadra, La «cosiddetta» accumulazione originaria, in AA.VV., Lessico marxiano, Manifestolibri, Roma, 2008, pp. 23-52.

[20] See Ugo Mattei & Laura Nader, Plunder. When The Rule of Law is Illegal, 2008

[21] Gian Carlo Rota, The End of Objectivity. The Legacy of Phenomenology, Lectures at MIT 1974-1991 Second Preliminary Edition, in collaboration with Sean Murphy and Jeff Thompson, 1991.

[22] Antonio Gramsci, 1971. Selection from the Prison Notebooks. International Publishers, New York

[23] Fritjof  Capra, The Web of Life. A New Scientific Understanding of Living Systems, 2004

[24] Fundierung: a term coined by Heidegger to describe the layers of contextuality which constitute our perception of reality. Martin  Heidegger, Being and Time, trans. by John Macquarrie & Edward Robinson,  1962.

[25] Jeanette M. Neeson, , Commoners. Common Right, Enclosure and Social Change in England, 1700-1820, 1993.

[26] Josee Johnston, “ Who Cares About the Commons?” Capitalism, Nature, Socialism; Dec 2003; 14, 4

[27] Antonio Negri & Michael Hardt, Commonwealth, 2009




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