FAQ

FAQ

//** What is the purpose of the study? **// To comparatively investigate  the status of access to commons today and identify those legal institutions that currently foster and/or have the potential to nurture access to commons.

//** What is the fact based methodology of the Common Core? **//

The Common Core is a method pioneered in the sixties in the pioneering Cornell seminars led by the late master of comparative law Rudolf B. Schlesinger in the monumental work on Formation of Contracts published at Oceana in 1968. The methodology utilizes a legal formants (developed by Radolfo Sacco) to the investigation of legal problems and traditional areas of the law are reduced into a number of hypothetical practical conflicts that legal systems attempt to solve. Data is gathered by fact- based questionnaires and jointly developed for each area at annual general meetings. National respondents to the questionnaires should organize national reports according to three levels: actual solutions (level one); descriptions used by the different systems to justify the solution (level 2); institutional surrounding factors determining the actual solution (level 3). What emerges is a map of areas of actual agreement and disagreement between European systems on concrete problem solving solutions and also the different levels of the legal system (legal formants) in which analogies and differences can be located.  Today, the Common Core has published 11 Cambridge Press editions as well as two more on Stämpfli-Carolina Academic Press, in the fields of Contracts, Torts, Property, Trusts, Competition Law, and Environmental Law. Ugo Mattei and Mauro Bussani are the Editors.

//** Why did the study choose the definition of the Rodotà Commission in Italy as its starting point for defining the scope of the resources understood as "commons"? What are the normative commitments of the project? **//

The Rodotà Commission introduced the first ever legal category of “‘common goods,’ that is resources that are functional to the exercise of fundamental rights and to a free development of human beings.' ( Rodotà Commission Bill, Delegated Legislation to Reform the Civil Code Articles Concerning Public Property, Atto Senato n. 2031, XVI Legislatura.) According to the Commission's definition, common goods (bene comune) should be protected by the legal system for the benefit of future generations. Common goods’ holders can be either a public legal person or a private. In any case they should guarantee the collective fruition of common goods in the ways and within the limits established by the law. If the holders are public legal persons, common goods are managed by public bodies and are located out of trade and markets; their concession/grant is allowed only in the cases provided by the law and for a limited time, with no possibility of extension. Examples of common goods according to the Commission are, among the others:rivers, streams, spring waters, lakes and other waters; the air; national parks as defined by the law; forests and wooden areas; mountain areas at a high altitude, glaciers and perpetual snows; seashores and coasts established as natural reserves; protected wildlife; archaeological, cultural and environmental goods.” The name of the Commission is derived from the name of its President, a leading Italian property law scholar and former distinguished member of Parliament.

This definition was selected not only because it provides the first legal definition of common goods but also because it reflects what we see to be our normative commitments or values of the commons. As understood by the core investigators these values may be helpfully conceived in terms of three broad categories: (a) inter generational justice, conceptualized as the equitable access for not only this generation but future generations to roughly equivalent means of well-being as the present generation; (b) democracy, understood as the enhancement of wide participation in decisions over irreducibly social or collective matters, both in terms of extending the scope (or reach) of such social decision making and deepening or refining its form (which may involve, for example representative, rotational, direct/participatory, consensus versus majority decision making); and finally; (c) community, conceptualized as the experience and affirmation of supra-individual relations and identities as intrinsically valuable, constitutive of persons’ identity or sense of the good life, an intrinsic sociality that, in resisting complete individuation or instrumentalisation, seeks in part to re-embed market economic activity back into social life.

//** What is the relevance of these normative commitments to the study? **// While, comparative law is a descriptive discipline, the idea that the study of law can be entirely neutral in values is highly controversial. Even the most seemingly "neutral projects" like "harmonization" of laws across nations imply value judgments as to which laws are chosen over others, which institutional factors of study are selected over others. For example the Lando Commission or the UNIDROIT principles, as explained in " The Common Core of European Private Law" by Mauro Bussani and Ugo Mattei explain were attempts at study for the purpose of harmonization where the "rules that are finally selected must be coherent to the values that have been chosen as essential (or taken as a matter of course) by the participants, values that usually end up corresponding with market ideology." The very concept of value-neutrality is on the one hand rejected by the Common Core in that it promotes diversity and rejects the clear normative commitments of market efficiency, on the other hand in this particular study which requires the definition of a concept, which is currently not well defined in the law, the need to accept that such definition implies normative commitments began to emerge. As we found in our early discussions, even if we were to begin from those normative commitments well established within Human Rights and Constitutional law, the selection of what types of resources are "commons" and therefore the subject of our study requires a value judgment. Even if we define commons within the definition of the Rodotà Commission, the decision of what resources are " functional to the exercise of fundamental rights and the free development of human beings" is a value judgment, one that the group must decide and develop together and is informed by the purpose of the study to comparatively investigate the status of access to commons today and identify legal institutions that currently foster and/or have the potential to nurture access to commons.

//** What areas of law does the study investigate? **// The study is not limited to private law nor just to property law, as the issue of access to commons touches upon both public law, constitutional law as well as, administrative, and customary law. As such our study is not limited to the conception of commons as simply "group property" but more broadly investigates commons property institutions- namely, social relationships structured by law (informal or formal) about a resource pertaining to the following entitlements: exclusion, use, transfer and expropriation ( See Syed 2013).

__** Private Law **__ //** What is the difference in the configuration of entitlements in private property v. group/commons property and open access regimes? Or in other words how can one identify what falls under the rubric of commons property for the purpose of the study? **// In contrast to an idealized form of private property, where typically there is one person who holds the entitlement to exclude all/most others, which others in turn have little to no use rights, in commons regimes there are multiple entitlement holders, with most/all of them having use or access rights – and hence none having a strong right to exclude – vis-à-vis each other. It is also important to note that those held to be outside of the common may have use entitlements ranging from little to none, as with private property and hence Carol Rose’s characterization of these commons as “contractual communities”, which can operate as commons inside and private property outside (Rose 1998). The configuration of multiple-use entitlements captures both group/communal property as well as open access regimes. The distinguishing factor between group/communal property and open access is that in the former members within the common have the right to exclude outside users while in the latter no one has the right to exclude (See Bailey 2013). Commons property can take many legal forms from trusts to foundations to cooperatives.

__** Constitutional Law **__ //** How does the study approach the investigation of constitutional rights as a legal institution that facilitates access to commons? What kind of questions are we answering? **// Constitutional law provides a plethora of entitlements related to resources in many countries.The question is how well those rights are enforced by courts. Preliminary questions may be: what kind of entitlements to resources do rights provide through constitutional law? How do rights serve as a political strategy for creating better access to commons? How do they activate the creation of moral communities?

__** Regulatory and Administrative Law **__ //** How does the study approach the investigation of national and European level regulation as well as administrative law as a legal institution that facilitates access to commons? **// What kind of regulation effects fundamental resources at the national and European level? How do we know whether it is reducing access or increasing access? How do we know if such regulation is facilitating the creation of commons property institutions: Does the regulation confer entitlements to use upon users and disables private owners from exercising their exclusion rights to prevent such use?