Une approche ‘ecologique’ des ‘communs’ dans le droit. Regards sur le patrimoine transpropriatif, les usi civici et la riviere-personne.

Today, more and more groups of inhabitants are increasingly involved in practices rooted into the local lands and territories they inhabit. We call this kind of action: 'commoning'. Commoning is characterized by (1) a group of people (2) that self-organizes (3) around a resource that concerns them and that entails collective responsibilisation, and (4) in which they pursue generative rather than extractive activities.
Through three case studies the article tests the suitability of the law towards this kind of action. It first explores the notion of 'transpropriation' to accommodate the 'return of the commons' in law, inspired by the features of the ‘common heritage’ institute. Then, the focus shifts towards the latest legislative and jurisprudential developments concerning ‘civic usages’ in Italy (i.e. usi civici), a form of commons inherited from the past. Finally, the study addresses the notion of ‘milieu’ in the light of judicial and legislative developments that have recently taken place in New Zealand. The sense attributed to the notion of milieu here, has to do with a whole of "ecological" relations that form a biotope.

All in all, it appears that the law modestly and marginally opens itself to the recognition of the networks of interaction and interdependencies among all living beings that inhabit lands, rivers and territories and to see these as living places. In doing so, law starts to mitigate its predominant modern perspective in which a number of oppositions and major divisions still operate between subject and object, nature and culture, human and non-human and individual and collective. In the same vein, law starts to recognize that communities of inhabitants take full and proper part in the conservation, maintenance and regeneration of the conditions of life of a milieu.

Following these observations and the possibilities they open up, the article makes proposals for the possible legal protection of commoning, while hoping that this kind of sustainable and generative action can begin to exist more than marginally in law.

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