We use law when it proves useful; we break the law when it prevents the realization of a more just common life (Teatro Valle Occupato, my trans.)

The financial crisis and the subsequent series of austerity measures have prompted fierce resistance in the streets and squares across Southern Europe. As the crisis exploded, shattering the illusion of a social Europe, a veil was lifted, fully uncovering Europe’s neoliberal face: downsizing, lay-offs, skyrocketing unemployment, erosion of an already ailing welfare system, the pushing of millions into poverty — all while protecting the interests of European financial capitalism.

The crisis however is not only economic. It is also political and legal, as is clear from the deep legitimacy crisis of representative democracy, and the expulsion of politics from both governments (with so-called “technical governments”) and parliaments (with both ordinary and constitutional rule-making delegated to national and supranational technical bureaucracies). In this state of exception and of suspension of the most basic democratic and institutional mechanics, law presents itself as a form of domination. By renouncing any pretense of legitimation grounded in social and political dynamics and by breaking any link to any form of popular mandate or public interest, law increasingly appears as pure command and as a form of violence.

However, or perhaps because of this situation, law is also re-emerging as a form of critique and as plural insurgent practices. An important example of this is the movement for the beni comuni (the commons) in Italy. Both in theory and through practices the commons is being articulated as a counter-hegemonic framework and as a philosophical, social and juridical critique of property, sovereignty, representative democracy and the monopoly of power on the production of law. Ambiguously and strategically oscillating between legal and (formally) illegal practices and spaces (yet within the broader space of the juridical as jus, in opposition to the legal as lex), the commons re-grounds law in the actions and practices of bodies and communities.

Law itself is re-organized conceptually and practically around the concept and practices of the commons, which im/poses itself as a deconstructive force against the hegemonic architecture of legal modernity, premised on the mutually re-enforcing binary private/public. Such archetypes of legal modernity, which take the form of private property and the State — and refer respectively to the individual owner and the public Sovereign — are frequently presented as radically conflicting; instead they stand in a relationship that is symbiotic. Their mutual opposition is “fabricated” and is a “precise ideological choice of the individualistic tradition as both are inserted into a fundamental structure: the rule of a subject (an individual, a company, the government) over an object (a private good, an organization, a territory)”. (Mattei 2011)

In this sense, the perspective of the commons is incommensurable with the modern articulation of property in terms of the artificial dialectic between private and public, as the commons are of necessity — investing things and processes functionally destined to the satisfaction of basic and fundamental needs — excluded from the processes of circulation of commodities. Furthermore, the commons is a “qualitative category based on inclusion and access, whereas property and State sovereignty are rather economical-quantitative categories based on exclusion (produced scarcity) and violent concentration of power”. (Mattei 2011)

In this light, the perspective of the commons represents an insurrection in the Foucauldian sense — of knowledges, practices and juridical forms — insofar as it has always been present in the reality of social practices and social and juridical relations, albeit compressed and delegitimized. The insurrections are most importantly insurrections against the centralization effects which follow the processes of institutionalization that organize knowledge, including law, as both a form of power and as a form of technical knowledge (Foucault 2003). The commons further implies a radical reclamation of the constituent power of embodied communities, capable and legitimated to produce living law, and to resist the hegemonic configuration of law as the most classic of the instrumenta regni.

Locating the commons

As legal scholar Ugo Mattei — one of the crucial actors in the Italian commons movement — emphasizes, the commons rejects any essentialism and it cannot be framed as something already there. In this sense, the commons cannot be then reduced only to the traditional “natural commons”, which is only one of its dimensions (albeit an important one, genealogically and legally!). It is, instead, an open category: the commons is discovered, affirmed and re/produced through social practices and struggles, and is contingent upon the continued practices which affirm and re-claim it. Moreover, the commons is radically social, but not identitarian, as it is organized around common projects, with collective subjectivities being formed through their practices rather than being already there. The commons is furthermore organized along the functional category of use, rather than in accordance with the formal category of title. This is because its central feature is the linkage established between utilities and basic needs and fundamental rights. Its mode of governance is necessarily participative, as already anticipated in the etymology of the word “common” (cum + munis), where participation in the formation of and care for the commons is required to guarantee access to the utilities generated by the commons. Participation is, in other words, an intrinsic aspect of the practices of “commoning”, which identify, assert, re-claim, and govern the commons.

Law as insurgent practice

The practices of the commons, as noted, oscillate between a) legal and institutional practices and b) illegal forms of reclamations.

a) Critical legal scholars are retrieving the category of the commons and re-deploying it in such a way as to reclaim the principles enshrined in the Constitution. A central element of this process has been the work of a commission of jurists chaired by Stefano Rodotà established in 2007 to formulate a legislative proposal for the amendment of the Civil Code. The commission, which was to reform the category of “public goods”, proposed introducing the commons as a separate and distinct category. In this vision, the commons is an expression of social and economic utilities directly functional to the exercise and realization of fundamental rights and is framed within an intergenerational perspective. The category of the commons thus inverts the relationship between formal title and legal regime: it is the objective qualities of a thing as a source of constitutionally relevant collective utilities (its function) which decide the applicable legal regime.

This proposal remained unheard by Parliament, but it has recently acquired a new life in the form of an ambulant commission called the “Constituent for the Commons”, which aims at discussing with citizens and communities a number of social and legal issues in the loci of struggle shaping the practices of the commons. This is an innovative encounter between jurists and social movements, equally participating in the formation of “living law” through itinerant public debates held in the very commons that citizens and communities are occupying and reclaiming on the ground, be it theatres (http://www.teatrovalleoccupato.it/), cinemas (http://www.nuovocinemapalazzo.it/) or industrial sites (http://www.rebeldia.net/).

b) The legal system is also being challenged through formally illegal practices, such as the aforementioned occupations and through the reclamation of formally public or private properties in the name of the commons and their social function. The experience of the roman theatre Teatro Valle is perhaps the most emblematic. Teatro Valle has been occupied since 2011 by a group of artists and cultural workers with the aim of preventing its alienation and in order to provide the community with access to culture, understood as a fundamental right. This participatory and self-organized experience has, over time, become both a symbol and a catalyst for the commons movement. Its Statute is being developed through participatory mechanisms — a draft-comment-and-discuss process modulated through its website, public assemblies and working groups. In its current draft, the Statute frames the constitution of the Foundation as an autonomous and direct implementation of the Constitution, hence legitimating the constituent power of its underlying collective practices.

By challenging the legal system (occupations of immovable property are sanctioned, for example, by article 633 of the criminal code) while at the same time claiming to manifest a wider legality directly linked to fundamental constitutional rights and to the articulation of the commons by critical legal scholarship and other institutional legal practices (notably, a decision of the Supreme Court – Corte di Cassazione –  recognizing the category of the commons, with implicit reference to the definition offered by the mentioned Rodotà commission), occupiers are in fact “performing law” as an embodied insurgent practice. The occupation of the theatre is a manifestation of the “constituent power” of collective social practices, whose aim is the re-injection into the community of those commons which the public institutions are unable to protect. In this manner, such practices are framed as safeguards of public interests and as instruments for the realization of the fundamental rights of a community against both public neglect and private profiteering.

Law, through the participatory practices of the commons and its articulations in legal language, becomes insurrection, and operates as both theoretical and embodied critique.

Vito De Lucia is a Doctoral Research Fellow at the Faculty of Law, University of Tromsø, Norway.

References

— U Mattei ‘The State, the Market, and some Preliminary Question about the Commons,’ (French and English Version), 2011 Available at: http://works.bepress.com/ugo_mattei/40. There is no page number in the document.
— Foucault, M., Society Must Be Defended. Lectures at the Collège de France 1975–76, Penguin Books, 2003