In a context where the legal recognition of the concept of commons is complex and fragmented, organisations and communities have to innovate existing laws to make them more suitable to communities’ needs. Rather than adapting to existing frameworks, they can make a creative use of the law to generate new legal tools.
The lack or the fragmentation of a definition of the concept of commons in a legal system is a serious problem for communities that manage a commons or are engaged in commoning practices. This kind of legal issue very often is impossible to solve with existing legal tools; instead, what is required, is a problem-solving attitude towards the law and the adoption of a creative approach. In this context, the term ‘creative use of the law’ indicates the way in which the law can be used to find different pathways to the resolution of a legal problem in a way that can benefit and respect both of the parties involved. In the case of Asilo Filangieri, obtaining a legal status was not a quick win, but rather the result of years of internal work and dialogue with the local council; a lot of efforts went into making a creative use of the law to find feasible solutions to the legal hurdles faced by L’Asilo. This was a deliberate choice: rather than adapting to the “classical” legal frameworks offered by the Italian system, and thus facing limitations either in terms of mission or self-government, they collaborated with the city council towards the creation of a new legal tool.
1) Create a system of shared governance that takes into account legal issues Having a well-functioning internal system of shared governance gave L’Asilo the opportunity to discuss each step of the process taking into account a wide range of voices. L’Asilo has an internal system of thematic round tables that focus on different aspects of its management, and a general assembly that is open to the public, where the community takes decision as a whole. One of the round tables is dedicated to self-government; it designed a set of internal governance rules that emerged from the practice of the use of the spaces, adopting a self-reflective approach. It also studied Italian law for years, working relentlessly on finding creative solutions that could be feasible within the Italian legal context whilst keeping a close contact with the general assembly in order to feed the perspective of the community in its work. It also played an essential role in dialoguing with the local council, finding solutions to legal obstacles and creating a “Declaration of Civic Use” that establishes the organisation as a new institution. 2) Identify legal hurdles A creative use of the law is only possible when the legal obstacles that the community needs to overcome are clear. For this reason, establishing a group that is ready to tackle this kind of issues, such as in the case of L’Asilo, is an important part of the process. Furthermore, communities involved in the process need to be aware of the fact that once a legal hurdle is overcome, another one might appear; for this reason, it is necessary to be ready to go back to the drawing board and find new solutions. 3) Establish a dialogue with the local government In the case of L’Asilo, the local council was a very suitable interlocutor to work together on the commons. The commons were a very strong theme of mayor Luigi de Magistris’ first electoral campaign in 2011, and remained an important part of the activities of the local council. Naples was the first city to create a Department of the Commons (Assessorato ai beni comuni), demonstrating unprecedented attention to this topic. L’Asilo was strategic in dialoguing with a council that not only was familiar with the concept of commons, but also openly sustained commons-oriented activities and policy. 4) Be open and listen In a process of dialogue and negotiation with local authorities, communities can face multiple challenges. During the process, being told “no” can happen very frequently, but this should not discourage communities, nor make them interrupt their dialogue with the local government. Instead, it is always necessary to ask “why not?”: knowing what is the problem that is hindering the process is the only way to find a solution to it. 5) Establish a relationship of mutual trust For grassroots organisations and communities, especially those that have engaged in practices that are prosecutable by the law, such as the occupation of a space, it might be hard to gain the trust of local governments. At the same time, a self-governed group might fear a loss of independence when collaborating with a public authority or, in the worst case scenario, being manipulated into serving political purposes that do not align with their own. In order to establish a relationship of mutual trust, it is essential to identify the right interlocutors in local governments, find a common goal and keep an open communication. Most importantly, it is crucial not to be discouraged by impasses and, instead, to maintain a creative approach step by step. 6) Find novel approaches to existing legal frameworks One of the most creative aspects of the work of L’Asilo was to redefine the role of communities in the way they engage with resources – in their case, a heritage space. Indeed, at the heart of the concept of the commons there is the idea of open active communities, which have a central role in taking care of shared resources and taking responsibility for their safeguard. The activists undertook an analysis of the Italian legal system and found that this idea of active community is encapsulated in the concept of uso civico (civic use, see TOOL NUMBER X IN CULTURE, THE COMMONS AND POLITICS). Uso civico defines an active relationship between a community and a resource, and was thus used as a key legal framework in the work of the activists and the local council. 7) Look for solutions in unexpected places When considering the legal status of urban and cultural commons, the obvious choice would be to look at local and national legal frameworks on heritage, urban planning and so forth. In particular, the easiest solution for a group of citizens to legally assemble in the Italian legal system is private law, using frameworks such as the foundation (fondazione). However, using a private law framework would have contradicted the nature of L’Asilo as a commons, and it was thus necessary to find an alternative solution. The Neapolitan case demonstrates interesting approaches can come from other legal areas; indeed, the concept of water as a commons, which played a fundamental part in De Magistris’ campaign, was also crucial in reaching an agreement that could satisfy both L’Asilo and the local council. 8) Adopt a step-by-step approach In the case of Asilo Filangieri, obtaining a legal status was not a quick win, but the result of years of negotiation. In this case, the goal was not simply to have a legal recognition of the activities of L’Asilo, but to establish a precedent and to create a new legal framework that could foster new commons-oriented organisations and activities. For this reason, it was essential to tackle this legal issue step by step, taking the time to study the Italian legal system and to devise strategies to overcome each obstacle found during the process.
The term ‘creative use of the law’ is used to define ways in which the law can be used in novel ways to find solutions to legal problems. This concept is particularly useful in the context of social change: indeed, using legal frameworks and tools wisely can bring about change not only for a single group of people, but it can create a precedent that can be applied to other communities. In order to understand how this tool was mastered by L’Asilo, we need to discuss the background of this grassroots organisation. Between 2011 and 2014, Italy saw the rise of a wave of protest of activists and cultural professionals that challenged the cuts to arts and culture implemented by the Italian government and reclaimed culture as a commons. Many of these activists formed groups that occupied theatres and other culturally relevant buildings as a form of nonviolent dissent and civil disobedience. Among these buildings, there was Asilo Filangieri, a 16th century complex in the city centre of Naples, in the area that in 1995 was ascribed to the UNESCO World Heritage List and that belongs to the city council. In 2007, Naples was selected to host the Universal Forum of Cultures, and the Asilo was selected as a venue for this event. On March 2nd, 2012, the Asilo Filangieri was occupied by the collective La Balena (The Whale). The occupants started a series of cultural and artistic events inside the Asilo to give new life to a building that seemed to have been forgotten by the local administration. L’Asilo was particularly successful in establishing a dialogue with the local city council and finding a pathway to the legal recognition of their work, of the organisation and of the concept of commons more broadly. L’Asilo worked on a new interpretation of public and private property based on the concept of civic use (see TOOL NUMBER X IN CULTURE, POLITICS AND THE COMMONS). This was the result of a long period of study of the Italian law that eventually led to a novel interpretation of a well-established concept. This approach sees law as a living matter, not something statical. The theoretical approach proposed by the activists was rooted in their practice, adopting a problem-solving attitude towards the legal hurdles they were facing. Their legal status was officialised on 29/12/2015 by the city council’s resolution #893. In this document, we can see that the principles of self-government, participatory democracy and open access to the community were respected, thus preserving the organisation’s commons-oriented approach.