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The constituent assembly of the commons (CAC)

This bottom-up lawmaking project is an opportunity for us to reflect on the role the law can play as a strategy of struggle and resistance against the neoliberal policies of commodification and privatization. 

Italy can be assumed to be a semi-peripheral territory with reference to the processes of legal globalization. By ‘semi-periphery’ I mean a legal system where legal concepts, techniques or arguments from the centre are elaborated, reframed and diffused toward the peripheries, so working as a turning point between centre and edge. As such, the Italian system undergoes legal developments that may indirectly affect or be of interest to a broader region in the world. At this stage of capitalism, one of the legal fields that is most under inquiry, as a result of the diffuse dynamics of privatization and commodification affecting societies, is without doubt the law of property.

To my knowledge, there are three hotspots in the current Italian debate on property law that may well influence analogous developments in other countries. The first concerns the attempt to construct a law of the commons (beni comuni, common goods, biens communes) as a counter-narrative to the current naturalisation of private property. This is a new – even fashionable – topic, which Italian legal scholarship is increasingly investigating.

The second concerns the sunset of the constitutional principle of the social function of property as a legal strategy for subordinating private property to social interests.

The third is an experiment of bottom up law-making as a political practice run by a mixed group of legal scholars with a strong political commitment and social movements engaged in mobilisation for the commons. Although this experience is strictly linked to the renewed interest in the commons in Italian scholarship, not all theorists working on the commons are involved in this bottom-up lawmaking project. The goal is, roughly speaking, to reform the law of property and the legal regulation of access to resources (in civil law a specific branch of legal regulation, the droit des biens) through an experiment in collective drafting.

These three legal topics are tightly linked one with another. In this short article, however, I will focus on the third issue only; that is, I will discuss the experience of the Costituente dei beni comuni (Constituent Assembly of the Commons, henceforth CAC). Although I am one of its members, I was initially skeptical as far as some of its premises were concerned. This initial scepticism – I suspect – might be felt by many critics. It is for this reason that I would like here to share the pros and cons of such an experiment with respect to its theoretical and political foundations. This will offer an occasion for us to reflect on the role the law can play as a strategy of struggle and resistance against the neoliberal policies of commodification and privatization. 

Lawmaking as a political weapon held by social movements

In the amazingly huge literature on the crisis, the vast majority of the projects that articulate possible radical-leftist exit strategies give little or no significant role to law. In current descriptions of the innumerable forms of resistance and/or civil disobedience against the law in force, law is inescapably depicted as the guardian of the status quo, a neoliberal weapon thrown against the social ethos. The relationship between law and resistance has instead become extremely significant in Italy, where activists, including myself and other CAC members, are trying to use the law in many sites of political struggle. The basic idea is not to resist the law but to resist through the law, by means of the law.

What has made the encounter of (certain strands of) social movements with (some) jurists possible is a common goal: to preserve from dispossession the cities where we live, the urban places we share, our lives and, in sum, the wealth we produce in common. This strategy can be articulated in many different ways: finding a legal solution in order to save the so-called virtuous occupations from eviction is one of the main issues at stake; but also using legal actions to resist projects of infrastructure development, which would otherwise devastate natural and urban environments, or elaborating a statutory draft aimed to guarantee a basic income for all  - these are other crucial objectives in the CAC’s agenda.

The issue of the ‘new’ occupations deserves some attention. I am referring here not to the usual squats, but to places of ‘commoning’ where occupants reinvent social welfare by opening up buildings of public or private ownership – especially theatres, movie houses, but also factories and farms released by their owners – to a larger community (the neighbourhood, the town, etc.). In doing so, they transform them into facilities and services to be shared and managed in common.

These occupations activate a virtuous circle of utilities production by ‘freeing’ real estates and areas from owners’ misuse whilst, at the same time, using them ‘properly’; for instance, organising Italian language courses for migrants, free sport activities, cultural happenings, after-school activities, free access libraries, etc.

By guaranteeing free access to urban sites, occupants not only put in place a bottom up production of welfare, but also try to reinvent labour out of the labour/capital relation. This requires finding alternative ways of income through ‘commoning’. Now, the attempt to save these occupations from eviction allows for a legal construction of common goods and communing. This permits disarticulating property rights while re-connecting what is legal to what is (illegal but perceived as) legitimate and fair.

CAC’s structure and function

More generally the CAC aims at producing a legal regulation of the access and use of common goods. This has resulted in the introduction of new limits and constraints to property rights of both private owners and public bodies.

Such an enterprise finds its political and scientific legitimacy in the so-called Rodotà Commission (RC) – its chair was an internationally renowned law professor, Stefano Rodotà – who was appointed in 2007 by the national Minister of Justice to reform the third chapter of the civil code devoted to goods that are owned by the State. RC produced a draft, which, although it remained steadfastly ignored by the Parliament, introduced to us the innovative category of beni comuni (common goods) as a third category of goods progressing beyond beyond the public/private divide. The CAC restarted its initiative precisely from there.

The Costituente dei beni comuni has a two-level structure: it consists of:  a) a travelling assembly which includes activists & jurists and gathers in different places in Italy; and b) a drafting commission (only jurists). The stopovers of the ‘itinerant’ Costituente are chosen among sites of severe environmental and political breakdown, such as L'Aquila, the gorgeous renaissance city destroyed by an earthquake and never reconstructed.

It is here that the first assembly was held with the aim of meeting the citizens mobilized against the dispossession of both their private homes and their public space. Following the earthquake they had been confined and forced to live far from downtown, sprawling throughout a vast territory with no urban structure or social relations. CAC’s objective was then to find a legal strategy able to oppose the government’s restoration plans. Since then, communication, encounters and the exchange of opinion with local communities and social movements have been crucial to identify the legal practices that can best enable people to resist dispossession at the local level as collective actors.  

Bottom-up lawmaking: is it feasible or desirable?

At this point a critical attitude toward the CAC enterprise is welcome and even necessary. In effect such a project of resistance through the law inevitably raises a question: is bottom up lawmaking feasible and/or desirable at all?

The first burning question we have to face is namely: is it possible to produce law from below? To my knowledge, there is no evidence of such a course in legal history.

a) In the middle ages jurists were private citizens who created law: they were not representatives of the State. They derived their legitimation not from state authority but from the prestige of the legal source they interpreted (Corpus Iuris Civilis) and from their own personal prestige. However they represented an elite and created new law to serve the interests of dominant social groups (not poor people).

b) Customary law might be an example of law from below, but in complex legal systems its enforceability is in the gift of the sovereign and is in a way absorbed within it.

c) Is the lex mercatoria an example of bottom-up lawmaking? The lex mercatoria is certainly not produced under a state authority but it is definitely not law from below.

So we must conclude that so far the law has never been a weapon handled by the subaltern. We come now to another big question: how to deal with this (updated) faith in law? The attitude recently taken by some radical movements in Italy clashes with the most traditional findings of Critical Legal Studies (hereinafter CLS). And, of course, with the Marxist tradition, which I leave apart here. I will instead confront two CLS’ topoi.

First: we know that law is inherently incoherent, that legal rules are indeterminate, and that rights can be deployed to fulfil divergent political projects. However our disenchantment towards legal change as social engineering cannot disguise the lack of something. Is the internal critique strategy enough at this point? Can we defeat neoliberal policies, unbundle property, grant access to resources through internal critique, that is by denouncing the indeterminacy of legal rules and proposing socially oriented interpretations that might perhaps achieve more desirable adjudication outcomes?

I am not proposing to set aside the tools of critical analysis – which I am very fond of – and to embrace instead an illuminist project of legal change; yet, I am convinced that disarticulating property is a necessary step toward a fairer model of wealth distribution, toward, ultimately, a new idea of citizenship, and I doubt that such goals can be fulfilled today by means of ‘microsurgery’.

Second: the project of a bottom-up lawmaking has to deal with the Foucauldian critique of law’s  performativity. Legal rules as governamentality devices produce not only behaviours but even subjects. If, in theory, ‘lawmaking from below’ should be able to flip the order of discourse, it would not lose its performativity, its ability to construe individuals’ identities, to orient people’s conduct. Distributive analysis, however, can help us to set aside the darkness of a deterministic image of the law as an apparatus that unavoidably maintains a given distribution of power within the social body and to focus on the ‘good’ performativity of possible legal rules capable of moulding different settings of power.

To begin with, a legal regime of open access for some resources, together with the defeat of the hegemonic role of property, would empower the 99% of all human beings, although this would not prevent distributive conflicts from reproducing themselves within the now-reinvigorated majority. 

Conclusion: on law and politics

Anyway the discussion on the symbolic and social impact of the law is actually very intense within the CAC. Participants uphold different critical approaches to the law and different ideas about what the politics/law relation is like: for instance Stefano Rodotà’s faith in ‘the right to have rights’, which endorses a notion of human rights as far-reaching entitlements no longer rooted in national citizenship, but in a new, global legal consciousness; or CLS and legal realist approaches, according to which legal rules are indeterminate and serve different political projects, so that we can use them to produce a fairer distribution of power; or more Marxian attitudes, where the law is deployed in a purely tactical perspective.

All of us basically share (or are aware of) the traditional caveats about the law. Most importantly: the idea of a bottom up process of lawmaking is supported by an ironic sense of our common role as lawmakers and by the enjoyment of the collective dimension of the enterprise.

In conclusion, I believe that this enterprise is significant beyond the legal text it will produce. Its importance is mostly political. To participate in the drafting is a way to diffuse political consciousness and pro-activism, to boost ongoing social conflicts, to lift the veil on latent ones and at the same time to make them connect. Moreover it brings with it an emancipatory promise playing with the same techniques deployed by the power it confronts, and might be a way to supersede the emptiness of representative democracy without remaining at the margins. Last but not least, it might represent a challenge to mere cynical critiques of law, but without replacing the crucial role of politics.

Nonetheless, I do not intend to celebrate CAC beyond its actual potentiality. This is not the opportunity to downplay the lack of a stage of general mobilization in Italy as Syntagma does in Greece or Puerta del Sol and 15-M in Spain. Resistance and struggle against neoliberal policies would ultimately require a moment when identities no longer matter according to the Agambenian notion of ‘whatever singularity’, when the sum of individuals engaged in the uprising dismiss the various identities normally ascribed to militants and protesters: students, precarious workers, jobless intellectuals, debtors, and even jurists (!), and become just a multiplicity of singularities acting in common, a crowd, a class, a multitude. Perhaps a demos, as Costas Douzinas advocates. 

References

G. Agamben. The Coming Community, (Minneapolis: University of Minnesota Press, 1993).

A. Cavalletti, Classe, (Torino, Bollati Boringhieri, 2009).

Commissione Rodotà sui beni pubblici, http://www.astrid-online.it/Riforma-de2/Documenti/Commissione-Rodot-.pdf

E. Conte. ‘Roman Law vs Custom in a Changing Society: Italy in the Twelfth and Thirteenth Centuries’, in P. Andersen and Mia Münster-Swendsen (eds.), Custom - The Development and Use of a Legal Concept in the Middle Ages (Copenhagen: Djoef Publishing, 2009), p. 33.

C. Douzinas. Philosophy and Resistance in the Crisis: Greece and the Future of Europe, (Cambridge: Polity Press, 2013).

M.Hardt & A.Negri, Declaration, (Allen: Argo-Navis, 2012).

D. Kennedy. ‘The Stakes of Law. Or Hale and Foucault!’, Legal Studies Forum, Vol. XV, No. 4 (1991), p. 327.

M.R. Marella. ‘Pratiche del comune. Per una nuova idea di cittadinanza’, in Lettera internazionale, 116 (2013), p. 24.

S. Rodotà. Il diritto di avere diritti, (Roma-Bari: Laterza, 2013).

M. Spanò. ‘Law as Subjects' Production: A Foucauldian Argument for Class Action’, in Global Jurist, Vol. 10, No. 2 (Aug 2010), pp. 1-30.

Images courtesy of Tiziana Tomasulo

An editorial partnership with Open University

About the author

Maria Rosaria Marella is a full Professor of Law at the University of Perugia’s Faculty of Law, where she teaches Private Law and directs the Law Clinic on Health, Environment and Territory. She is a member of the Costituente dei Beni Comuni. Her current research focuses on the law of property and the tension between the private property traditional paradigm and alternative forms of ownership. She has recently edited a book on common goods and their legal regulation: M. R. Marella, (ed.), Oltre il pubblico e il privato. Per un diritto dei beni comuni. (Verona: Ombre Corte 2012). 

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