Emanuele Conte

The Many Legal Faces of the Commons. A Short Historical Survey

  • Abstract

Informations and abstract

Keywords: Commons in the history of legal theory, Legal historiography, Intergenerational subjectivity, Commons as irregular servitudes, Buildings as owners of common land.

This essay presents some of the many results of the efforts of jurists and legislators to propose a legal subjectivity different from the typically unitary one attributed to Roman law. Otto von Gierke’s monumental work aims to demonstrate that in the Germanic tradition the subject of rights could be a "natural" community, not a legal person. The creation of an immense category of atypical real rights by the legal doctrines of the Middle Ages and the modern age responds to the same need: to provide for the possibility of attributing a right of use of land not to an individual subject (natural or artificial), but to an indistinct plurality, which includes within it even those who have not yet been born. The parallel, fortunate construction of forest and pasture exploitation rights as irregular easements, where the fundus dominans is represented by the houses in the village, re-proposes in Roman law terms the very ancient structure that attributes rights to places, qualifying the community that enjoys the goods as that of those who inhabit the places who are owners (or holders of limited real rights). In the background of all this, there is probably an untold presence: the Christian model of ownership, with its Jewish-biblical roots and its large acceptance during the early Middle Ages. This model lies silently in the background of many legal institutions that have been presented as Germanic by the traditional legal historical scholarship and can explain many aspects of the social-corporative proposal that was put forward in Europe both by the Protestant nationalist Gierke and by many social Catholics in France and Italy.

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