The goal of a definition of the commons as a legal category is to ensure the acknowledgement and the legalisation of the work of grassroots organisations that manage and promote the commons. This also facilitates the long-term sustainability of organisations and their access to opportunities such as funding and awards.
The complexity of the discourse on the commons has been described as a “Tower of Babel” by Micciarelli (2014); the term is rich with philosophical, political and economic connotations. Micciarelli identifies a key tension in the legal concept of the commons: on the one hand, we can understand the commons as fundamental goods; on the other, there are fundamental rights to these goods that characterize the relationship between these goods and their users (idem, p.139). As a result, we can either understand the commons as goods that are fundamental and, as such, have an independent legal status or, instead, the goods that are connected to fundamental rights. A similar tension can be found in Maria Rosaria Marella’s analysis of the legal concept of the commons (2017). From a legal perspective, according to Marella, can understand the commons as a form of property that is not either public or private (such as in the work of the Rodota` commission, presented below), or as a ‘bundle of rights’ (and is therefore connected to use and enjoyment of certain goods). To discuss this tool, we will follow Marella’s analysis based on the case of Italy’s legislation on the commons, including both national and local experiences that were the result of years of campaigns, collaborations and collective decisions.
The commons exist outside of the realm of state government, as they are based on the principle of self-management of communities. However, as pointed out by Elinor Ostrom (1990), the right to organise that belongs to the community who manages the commons must be considered legitimate by external authorities, otherwise this will affect the sustainability of the commons. It is possible to argue that grassroots organisations who maintain, promote and in some cases even create the commons might face an internal dilemma in fighting for their legal recognition. A legal recognition of their work can lead to the immediate benefit of not being prosecutable by the law for using a certain space or certain resources; furthermore, it can the organisation access to advantages that are only available to legal organisations (as taking part to larger initiatives, getting specific kinds of funding, etc.). Most importantly, it can ensure stability and sustainability in the long run to the organisation and its activities. Nevertheless, some organisations might see the legal recognition of the concept of commons as detrimental to its political anti-capitalist value and a possible threat to the organisation’s independence. Here, there are not clear ‘steps’ to the application to this tool, but rather different conceptual frameworks that can be applied in different contexts. In the Italian context, the design of a law on the commons started with the Rodotà commission for a modification of the laws of the Civil Code on public property. The commission was established by the Ministry of Justice in 2007 and was led by Stefano Rodotà (Ministero della Giustizia, 2007). Over the years, the proposal was subject to several changes, but its key point, that is the distinction between public property, private property and commons, remained intact. The rationale of the law is to design a new category of property regime that is to be understood as a form of “diffuse property” that involves both private and public bodies (Ministero della Giustizia, 2008). According to the proposal, this definition is not only limited to natural resources, but also heritage, archaeological sites, and cultural assets belong to this new category, as they are conducive to the expression and enjoyment of fundamental rights and to people’s personal development (idem). This proposal, however, was never implemented by the Italian Parliament. It nevertheless defines two key issues: the interdependence of the commons and fundamental rights, and the idea of the commons as a “third category” of property. If we move our focus from a national to a local perspective, we find that the commons can also be legally understood as a bundle of rights (Marella, 2017). The commons, therefore, can be placed in a continuum between private and public property; the rights connected to the common, such as access and management, can be disconnected from ownership and transferred to other people.. According to the author, “collective rights of access to those publicly or privately owned resources that are functional to the fulfillment of an individuals’ fundamental rights can be grounded on the social function norm (idem, 75)”; this concept is consistent with the key tenets outlined by Rodotà, as it connects the commons to the exercise of citizens’ fundamental rights and to their self-development. However, as noted by Marella, the legal concept of the commons as a bundle of rights has been applied only by local governments in the Italian context; on the national level, the Italian Constitution promotes citizen-led initiatives, but does not offer a framework for transferring bundles of rights as the one defined in recent local regulations (idem, 80-81). The city of Bologna was a pioneer in this field and created a regulation that allows forms of collaboration between the city council and the citizens for safeguarding different kinds of commons, including intangible (Comune di Bologna, 2014). This legal framework entails the spontaneous, free and voluntary offer of skills and resources of citizens who want to pursue the common good (idem). This framework was eventually adopted by other Italian cities, such as Turin and Florence. A similar approach can be found in the case of Naples and the work of the city council led by Luigi De Magistris, who has been elected mayor of Naples in 2011 and re-elected in 2016. The city council’s strong belief in the safeguard of the commons led to the creation of the “Assessorato ai Beni Comuni” (Department for the Commons) in 2011, that has implemented a variety of initiatives aimed at encouraging the participation of the citizens in the management of public spaces. One of the most important experimental policies of this city council was the recognition of seven urban commons, among which Asilo Filangieri (Comune di Napoli, 2016): with council deliberation in January 2016, the city of Naples has officially recognised the merits and the social importance of these spaces, and the right of the occupants to carry on their work legally. A crucial aspect of the Neapolitan experience is the concept of self-government: indeed, the urban commons identified by the city council do not respond to the local government, but have independent systems of governance. This allows the organisation to work effectively as a commons, deciding its own rules and adopting a framework based on consensus (see Creative Use of the Law, Uso Civico). This experience - in a network of experiences called “National network of emerging and civic use commons” - made the case for an improved definition of commons: commons can become necessary for fundamental rights not only because of their nature or function, but because of their open and community-led management, oriented towards accessibility solidarity and mutual aid.
The history of the Italian experience on the legal recognition of the commons is rooted in a referendum that took place in 2011 on the privatisation of water supplies. This law was part of a larger policy of privatisation implemented by the Berlusconi government that affected public transportation, nursery schools, etc. Several different activist movements co-wrote a referendum proposal in 2010 and campaigned for the abrogation of this law with the slogan “Acqua bene comune” (water as a commons). The positive result of the referendum was an enormous success for the activists and it was the starting point for several other initiatives regarding the commons. As stated above, a project for a law for the legal recognition of the commons had already started in 2007, but after 2011 the theory of the commons gained momentum in politics, environmental activism and culture. In particular, in 2011,Italian protest groups composed of professionals from the arts sector who opposed practices influenced by the theories on the commons to the implementation of neoliberal-inspired policies. In fact, since the beginning of the economic crisis in 2008, the discontent of the Italian population with the implementation of austerity policies and the lack of political and economic stability caused an uprising involvement in political activism. The cultural sector, in particular, was going through a crisis determined by a lack of state funding. The dissatisfaction of the emergent creative class led to a series of demonstrations and campaigns that asked for the recognition of the rights of arts workers. Many abandoned buildings, especially those that were connected to culture, such as theatres, were occupied and became spaces dedicated to artistic and political experimentation. These grassroots organisations had a fundamental role in the process that led to the legal advancements outlined in the section above. Indeed, we can see them as actors of prefigurative politics, able to pioneer new forms of management and governance, and eventually to bring about change in the landscape of urban and cultural policy. Efrat Eizenberg describes the commons as both a way to redistribute rights, and an alternative to hegemonic neoliberal practices (2011, p. 779). We can see the experiences of these occupied spaces as consistent with this definition, with a particular attention to the right to work and the right to participation in culture. However, in order to be successful in the long run, these practices had to be acknowledged by local governments that are open to experimentation and willing to recognise the efforts of informal communities. L’Asilo and the city council of Naples were able to establish a dialogue that had some difficult moments and intense negotiations, but that eventually resulted with a successful result, providing an example of how grassroots organisations can collaborate with local authorities to bring about change in urban policy.
Comune di Bologna. 2014. Regolamento sulla collaborazione tra cittadini e amministrazione per la cura e la rigenerazione dei beni comuni urbani. Retrieved from http://www.comune.bologna.it/sites/default/files/documenti/REGOLAMENTO%20BENI%20COMUNI.pdf Comune di Napoli. 2016. Delibera di giunta n.446 del 01/06/2016. Retrieved from http://www.comune.napoli.it/flex/cm/pages/ServeAttachment.php/L/IT/D/5%252F5%252F6%252FD.f3d51671fdbfa028027c/P/BLOB%3AID%3D16783/E/pdf Eizenberg, E. 2011. Actually Existing Commons: Three Moments of Space of Community Gardens in New York City. Antipode 44(3) 764–782. Marella, M.R. 2017. “The Commons as a Legal Concept”. Law Critique 28, 61–86. https://doi.org/10.1007/s10978-016-9193-0 Micciarelli, G.2014. Le teorie dei beni comuni al banco di prova del diritto. La soglia di un nuovo immaginario istituzionale, "Politica & Società, Periodico di filosofia politica e studi sociali" 1/2014, pp. 123-142, doi: 10.4476/75795 Ministero della Giustizia. 2007. Commissione Rodotà - per la modifica delle norme del codice civile in materia di beni pubblici – Relazione. Available at https://www.giustizia.it/giustizia/it/mg_1_12_1.wp?contentId=SPS47617 Ostrom, E. 1990. Governing the commons: the evolution of institutions for collective action, Cambridge, Cambridge University Press.