The Commons as a Legal Concept

Abstract

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.