This short reflection stems from my recent experience at the Ex Colorificio Liberato (Ex Paint Factory Liberated) in Pisa, a 14,000 square meter factory which had been abandoned for eight years before being occupied eleven months ago by a group of citizens (Rebeldìa) and subsequently transformed into a place of social gathering and service to the city. I had the opportunity to visit the Ex Colorificio Liberato and participate in two days of debate on the commons, alternative ideas of property and on how to organize a legal defense of these ‘illegible’ spaces.¹James C. Scott, Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed (New edition ed. 1999). In particular, I was exposed to the provocative idea of occupying spaces in order to liberate them, an oxymoronic combination that I will try to unpack hereunder.

From a conceptual point of view, the word ‘occupation’ is closely linked with the notion of territory and space, indicating the concrete of abstract presence within its physical or mental borders. Similarly, occupation can stimulate images of exclusion, subordination and violence, but can also be linked with the opening of enclosed spaces, the liberation of people and their imagination, and the creation of spaces of cooperation. Military troops can, and certainly do, occupy territories and exercise violence over their citizens, but it is also the case that citizens occupy their own cities, making claims for different forms of administration and for a re-consideration of their socio-economic needs. Although history appears riddled with examples of occupation as a mechanism of power and control (including in terms of ideological occupation and biopolitics), recent events are trying to create and live alternative forms of occupation, whose main goal is liberation from the domination of the mono-paradigm.

Within the plurality of experiences and people that populate these counter-hegemonic forms of occupation—and which were certainly not ‘discovered’ by either Argentinian workers occupying their factories in the aftermath of the 2011 crisis or by the occupy movements at Zuccotti park—Italy and Italians are not lagging behind. Rather, multiple experiences of occupation-as-liberation have been arising in recent years as a response to the economic crisis that is affecting il Bel Paese, but also, and more interestingly, as a bottom-up countermeasure against the functional use of public sovereignty in a pro-austerity manner. That is the case of the Ex Colorificio Liberato in Pisa, of ZAM in Milan, of Mezzocannone in Naples, Scup in Rome, Spazio 22 in Abruzzo, La talpa e l’orologio of Imperia, the Zone Temporaneamente Liberate (Temporary Liberated Zones) in Treviso, and many other realities that gathered in Pisa last weekend, with the intention of getting to know each other and of discussing their future. This short reflection aims at raising awareness over the processes happening in Italy and at stimulating further reflections over the role that certain Italian occupations can play in liberating spaces and minds from another form of occupation.

All these experiences, each characterized by peculiarities that cannot be accounted for here, were not born of an intention to occupy spaces in order to separate them from the rest of the collectivity, nor to shift property from the public (or private) realm to the direct control of a group of occupiers. The difference between the occupations of the ’90s, which were mainly finalized in the creation of Centri Social Organizzati Autonomamente — CSOA — (Autonomously Organized Social Centers), and the current form of occupation, which someone called ‘Occupation 2.0’, appears to be the clear intention to re-publicize previously enclosed spaces. Independently from their formal ownership, which in some cases is public and in other is private, the object behind occupation is to transform enclosed spaces into a common resource that can be accessed, recreated, improved, and appreciated by everyone who is interested in being part of it. Each space which is occupied, is therefore subtracted from the dominant logic of accumulation by dispossession,²David Harvey, The New Imperialism (2003). liberated, and brought back to the community to whom it belongs. Such double trajectories of occupation and liberation, which are more or less advanced and organized, touch upon a series of legal issues, both institutional and ideological. I will try to unpack three of these.

Public/Private v. Commons

In contrast with the rhetoric that describes occupation as a subversive activity that targets the bourgeoisie and private property, what is happening in Italy is a wider attempt to challenge the public/private dichotomy of property, affirming the need to go beyond this formal attribution and to investigate the common utility that property generates. This appears clear from the various examples. While the experience of the Ex Colorificio Occupato concerns a privately owned factory, the two occupations which are going on in via Mezzocannone (Naples) target publicly owned buildings. Abandoning the crusade against private property per se, the new ‘liberators’ are attacking property as a form of occupying territories and subtracting it from the public utility and the public benefit. According to this perspective, exclusion, abuses, subtraction, and the predominance of economic profit over public interests, can be exercised both by a private owner and the State through the use of its authority.

Only the shift from form to substance, from the analysis of rights to the scrutinizing of the way in which these rights are exercised, can eventually guarantee the social function of property, which is guaranteed by article 42 of the Italian Constitution. This is particularly relevant at a time of economic austerity. However, the entire occupation liberation movement appears to be a counter-measure to the way in which public authority is exercised (or not exercised) vis-à-vis the community and its needs. The occupation of an area to produce common utility in the form of jobs, culture, housing, assistance to migrants, organic products, etc., is thus a way of challenging traditional top-down sovereignty by constructing and living an alternative.

Reappropriating Sovereignty from Below

A crucial aspect of the Italian occupations is the renewed concern about the role of the State—as the holder of public authority and exerciser of public violence—in guaranteeing the reproduction of a system based on exclusion, scarcity, accumulation, and inequality. In particular, these new movements are proposing a critique that goes beyond the ongoing campaign against ‘bad’ corporate power. They are acutely aware of the narrowness of a perspective which separates the realm of private economic power from the realm of law and sovereignty.

In fact, private property is introduced by the Constitution and the civil code, and is protected through the deployment of prerogatives which belong to the executive and judiciary. Moreover, sovereignty is crucial when urban planning is at stake, because there that we can clearly see the assemblage between authority, territory, and rights.³Saskia Sassen, Territory, Authority, Rights: From Medieval to Global Assemblages (2008). Without public consultations, the stroke of a pen can transform a privately owned industrial area into a residential zone. This is done irrespective of the needs of the community and without consideration of alternative uses of the same area.

In addition, sovereignty is crucial when property is public because it is the means by which a public space can be given in concession, enclosed, and made less openly accessible. This reduces the possibility of collective fruition and privileges private benefit (included that of the public administration) over that of the entire community.

Finally, occupations criticize sovereignty for being inactive and for not utilizing expropriation as an instrument of liberation, which is sporadically provided by the legal order. From this viewpoint, the illegal occupation of such spaces manifests a lack of satisfaction in the way in which sovereignty is exercised (or not exercised). It is a bottom-up attempt to address the imbalance which currently characterizes the State-market-community triangle.⁴Boaventura de Sousa Santos, Toward a New Legal Common Sense: Law, Globalization, and Emancipation (2002).

Occupation is not an end in itself, but a weapon of last resort in the hands of the weakest part of the relationship. It is a clear message sent to the State, as the formal holder of sovereignty, from the people as the source of that power. However, numerous and continuous evictions demonstrate that there are serious problems of miscommunication.

Illegality, Cooperation, Legitimacy

The third point relates to the capacity of occupation to subvert the legality/legitimacy duality, and to use illegality as the starting point of a virtuous process that passes through the production and distribution of common resources. The occupation of someone else’s property, whether public or private, runs counter to the Italian legal order. Not only can occupiers be forced to compensate and return the space to the formal owner, they can also be violently evicted and sentenced to prison, with a worrisome tendency in recent years to privilege criminal remedies over civil mechanisms. However, as Peñalver and Katyal highlight in their Property Outlaws,⁵Eduardo M. Penalver & Sonia Katyal, Property Outlaws: How Squatters, Pirates, and Protesters Improve the Law of Ownership (2010). an original act of illegality can also be the first step in a trajectory toward legal innovations, social transformation, and legalization.

Crucial for this shift from illegality to legality is the consolidation of legitimacy, intended as the local and collective recognition of the desirability of the occupation, which can then be transplanted into positive law. If anti-discrimination laws were enacted in the United States when a group of black people occupied the whites-only space of a restaurant for several days, leading to collective concern, public mobilization, and eventually the intervention of the legislator, why could not the current occupations of abandoned factories, empty public buildings, or other spaces, which are not creating any common utility or are about to be subtracted from the collectivity, lead to future legislative reform aimed at recognizing the supremacy of common utility and common interest over the private accumulation of resources and the logic of the market?

Admittedly, the construction of legitimacy is not a process that can happen overnight. It requires deep involvement with society, not only at the local level. The novel liberation of occupied space, where the collectivity is invited and can profit from services that would not be available otherwise (or more expensively), could play a crucial role if properly reinforced and adequately rooted in the social structure of each city. The legal and social defense of the occupation could act as mutual supports, since a modification of the law (or of the interpretation of the law provided by courts) would be influenced by collective perception and associated pressures exerted on political and legislative powers. Rather than acting like a frightened animal that defends itself with all its force, occupiers would benefit from a defense based on more openness, more participation, more involvement of the community in the project and in the utility produced. They will need to ‘bring their spaces outside their spaces’, increase visibility and transparency, and place imagination at the center.

Only then, when in the collective imaginary an occupied space becomes a space that cannot be ‘dis-occupied’, will occupiers win their struggle. Italian property outlaws will reach their goal only when their action is recognized as a legitimate use of absolute sovereignty, when their liberation of a previously enclosed space is so strongly supported that it would be unimaginable for the public authority to enforce its own form of liberation by means of public violence.

Despite the efforts and the attempts made by Rebeldìa and the other movements involved in the campaign to liberate enclosed spaces, on Tuesday September 17^th the criminal court of Pisa declared the occupation illegal, as the criminal code required, without recognizing the social function and the collective utility produced by the occupiers. Once again, legality won over legitimacy, highlighting the importance of redefining the borders of the former through a consolidation of the latter. However, the struggle for spaces of liberation and a reappropriation of sovereignty is only just beginning.

Tomaso Fer­rando is a PhD Can­did­ate at Sci­ences Po Law School, Paris.

• 1
  James C. Scott, Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed (New edition ed. 1999).
• 2
  David Harvey, The New Imperialism (2003).
• 3
  Saskia Sassen, Territory, Authority, Rights: From Medieval to Global Assemblages (2008).
• 4
  Boaventura de Sousa Santos, Toward a New Legal Common Sense: Law, Globalization, and Emancipation (2002).
• 5
  Eduardo M. Penalver & Sonia Katyal, Property Outlaws: How Squatters, Pirates, and Protesters Improve the Law of Ownership (2010).