The introduction to the dossier examines the working hypothesis underlying the collected articles: that of a paradigm shift in the critique of the solidarity of the contemporary legal order with forms of human damage generated by market capitalism. According to this hypothesis, we are witnessing the emergence/resurgence of two categories, "the common" and "the commons," whose semantic organizational power responds to the exhaustion of the "social paradigm" (social rights, the welfare state, social movements, social citizenship, labor law), a framework that has organized criticism of the hegemony of the market order since the mid-19th century. One of the strengths of the commons banner is that it has succeeded in offering a conceptual affordance that transcends the divide between material and immaterial spaces, between the natural world and the technical world. After a schematic overview of the contemporary epistemic landscape, at the crossroads of scientific disciplines and ordinary criticism, the figure of the "paradigm shake" is sketched out. The normative conceptualizations inherited from the last two centuries seem likely to be enriched, rather than replaced, by emerging institutional problematizations and experiments that claim to be common(s). Institutions and mechanisms derived from the "social paradigm" can thus envisage opportunities for revival, thanks to the integration of new types of interdependencies (especially ecological ones).
Forests have always been a common in their own right. Historically and etymologically, the forest has been conceptualised in opposition to the commons. Today, like many natural elements, it is the subject of particular and increased attention. While the `commons' share common features, they are not in every way similar. Forests belong to all owners, public and private. As they are located on national territory, they are regulated by national land law. Some people see themselves as mere custodians of forests that belong to no one. For others, they `belong' to everyone, through various activities carried out at the same time. This is particularly true for public forests where the `public' is confused with the property of all and the use of every one. The legal status of the forest gives rise to a number of elements of the `common good'- current, actual, potential, even past and renewed. In France, public and private forests are governed by the Forestry Code, which sets out common rules. Lawyers, citizens and managers are joining forces to think differently about forest ownership and governance. New common principles in forestry law are emerging from their renewed practices.
This paper describes from an analytical and normative perspective how economics reduces what's common to its individual components only. The ignorance by welfare economics of its normative challenge results from "welfarism", the framework according to which social welfare just depends on individual utilities and no other information. The paper recalls the context of the Sen's liberal paretian, the paper shows the consequences of these informational restrictions, and allows to identify the avenues for taking what's (only) common seriously. The paper concludes as an invitation to revisit the implication of the community members in collective decisions.
The problem of the commons will be addressed from the combination of three issues: their dependence on usage, their difficulty in terms of law, and their limitations in terms of discursivity. We will open up three avenues for overcoming this problematic combination. All three involve fiction: first, we will show how the slow constitution of the social can be understood from the longer history of legal fiction. Next, we will show how fiction itself can only be understood from a common agency. Finally, by way of example, we will show that fiction was essential to identifying common things in Grotius's work.
This paper questions the legal relevance of the concept of commons in defining certain natural entities such as ecosystems with reference to environmental ethics. First, the concept of << common goods >> is presented as a legal technique that undermines the inherent dignity of elements of nature. While the concept certainly aims to enhance the value of certain categories of legal things, including those from the natural world, it is largely insufficient in that elements of nature remain reduced to the status of things, albeit with a specially favourable sui generis status. This is why the parallel concept of << commons >> is promoted in a second stage. It is presented as an appropriate technique for enhancing the elements of nature, provided that they evolve in the direction of legal personification. In this way, they participate profitably in the governance of the commons within the framework of an institution representing life that can be described as a << matrimonium >> of the community of life.
The central issue today is no longer solely a social one, but rather that of nurturing the social and ecological solidarity on which we depend, and thus thinking and acting, individually and collectively, towards joint political, economic, and ecological emancipation. The commons-as a long-term dynamic for building sustainable modes of social and ecological solidarity-can serve as a mobilizing paradigm for thinking about and acting on the societal transformations that are necessary today, inviting us to revisit our relationships with time, space, knowledge, otherness, and institutions. Collective actions based on this paradigm of the commons are all the more likely to forge effective interdependence between ecological, economic, and political emancipation when a set of favorable conditions are in place. Public authorities and stakeholders therefore have a responsibility to ensure that these favorable conditions are met, which we propose to anchor in a renewal of the precautionary principle in the sense of caring for social and ecological solidarity.
This article aims to challenge the notion that the liberal tradition has a singular way of defining social order and the common good. Indeed, for many orthodox liberal theorists of economic thought, the common good does not require the intervention of a superior political will because common good would be the indirect outcome of the spontaneous functioning of the property order, governed by private contracts. However, we argue in this paper that this idea is far from clear-cut. In fact, some of the founding figures of liberalism, such as Grotius and Locke, demonstrated that for property rights to be legitimate, they must, at the outset, include the right of others to access the resources necessary for a dignified life. In light of this, we suggest another liberal hypothesis-liberal because it does not abandon the priority given to equal rights and liberties-that could argue that the community of goods refers to the permanent bonds that connect each individual to others in a shared destiny. This is what we propose to call the "co-ownership of the world."
This paper describes from an analytical and normative perspective how economics reduces what’s common to its individual components only. The ignorance by welfare economics of its normative challenge results from “welfarism”, the framework according to which social welfare just depends on individual utilities and no other information. The paper recalls the context of the elaboration of welfarism. Based on the teachings derived from Arrow’s impossibility theorem and Sen’s liberal paretian, the paper shows the consequences of these informational restrictions, and allows to identify the avenues for taking what’s (only) common seriously. The paper concludes as an invitation to revisit the implication of the community members in collective decisions.
This article aims to challenge the notion that the liberal tradition has a singular way of defining social order and the common good. Indeed, for many orthodox liberal theorists of economic thought, the common good does not require the intervention of a superior political will because common good would be the indirect outcome of the spontaneous functioning of the property order, governed by private contracts. However, we argue in this paper that this idea is far from clear-cut. In fact, some of the founding figures of liberalism, such as Grotius and Locke, demonstrated that for property rights to be legitimate, they must, at the outset, include the right of others to access the resources necessary for a dignified life. In light of this, we suggest another liberal hypothesis—liberal because it does not abandon the priority given to equal rights and liberties—that could argue that the community of goods refers to the permanent bonds that connect each individual to others in a shared destiny. This is what we propose to call the “co-ownership of the world.”
The article proposes a historical and logical review of the relationship between modern private law and the “common”. Through an archaeology of modern private law, it explores the crucial moments that have determined the apparent antinomy between private law and multiplicity. The dogmatic construction of subjective rights serves as a testing ground for this sophisticated operation, carried out notably by the jurists of the German Historical School. In contrast to this history, the article suggests the possibility of conceiving a different relationship between private law and multiplicity, based on the notion of trans-subjective rights.
The central issue today is no longer solely a social one, but rather that of nurturing the social and ecological solidarity on which we depend, and thus thinking and acting, individually and collectively, towards joint political, economic, and ecological emancipation. The commons—as a long-term dynamic for building sustainable modes of social and ecological solidarity—can serve as a mobilizing paradigm for thinking about and acting on the societal transformations that are necessary today, inviting us to revisit our relationships with time, space, knowledge, otherness, and institutions. Collective actions based on this paradigm of the commons are all the more likely to forge effective interdependence between ecological, economic, and political emancipation when a set of favorable conditions are in place. Public authorities and stakeholders therefore have a responsibility to ensure that these favorable conditions are met, which we propose to anchor in a renewal of the precautionary principle in the sense of caring for social and ecological solidarity.
This paper questions the legal relevance of the concept of commons in defining certain natural entities such as ecosystems with reference to environmental ethics. First, the concept of « common goods » is presented as a legal technique that undermines the inherent dignity of elements of nature. While the concept certainly aims to enhance the value of certain categories of legal things, including those from the natural world, it is largely insufficient in that elements of nature remain reduced to the status of things, albeit with a specially favourable sui generis status. This is why the parallel concept of « commons » is promoted in a second stage. It is presented as an appropriate technique for enhancing the elements of nature, provided that they evolve in the direction of legal personification. In this way, they participate profitably in the governance of the commons within the framework of an institution representing life that can be described as a « matrimonium » of the community of life.
The problem of the commons will be addressed from the combination of three issues: their dependence on usage, their difficulty in terms of law, and their limitations in terms of discursivity. We will open up three avenues for overcoming this problematic combination. All three involve fiction: first, we will show how the slow constitution of the social can be understood from the longer history of legal fiction. Next, we will show how fiction itself can only be understood from a common agency. Finally, by way of example, we will show that fiction was essential to identifying common things in Grotius’s work.
The introduction to the dossier examines the working hypothesis underlying the collected articles: that of a paradigm shift in the critique of the solidarity of the contemporary legal order with forms of human damage generated by market capitalism. According to this hypothesis, we are witnessing the emergence/resurgence of two categories, “the common” and “the commons,” whose semantic organizational power responds to the exhaustion of the “social paradigm” (social rights, the welfare state, social movements, social citizenship, labor law), a framework that has organized criticism of the hegemony of the market order since the mid-19th century. One of the strengths of the commons banner is that it has succeeded in offering a conceptual affordance that transcends the divide between material and immaterial spaces, between the natural world and the technical world. After a schematic overview of the contemporary epistemic landscape, at the crossroads of scientific disciplines and ordinary criticism, the figure of the “paradigm shake” is sketched out. The normative conceptualizations inherited from the last two centuries seem likely to be enriched, rather than replaced, by emerging institutional problematizations and experiments that claim to be common(s). Institutions and mechanisms derived from the “social paradigm” can thus envisage opportunities for revival, thanks to the integration of new types of interdependencies (especially ecological ones).
The current popularity of the category of the commons stems as much from the discredit into which communism and socialism have fallen as from the less than ideal way in which social law became institutionalised in the 20th century. In this context, there is a temptation to replace the paradigm of the social with that of the common, in the name of criticising wether “real socialism” or “the real welfare state”. However, in seeking to break too quickly with the traditions of socialism and social law, there is a risk that the category of the common will remain a mere slogan, that it will merely ‘respond to pseudo-idealistic demands aimed at satisfying values’ (Karl Polanyi). This study recalls that the emergence of social law at the turn of the 19th and 20th centuries in France and Germany was accompanied by a rediscovery of ancient forms of common property. It shows that we can find clues among the solidarists, the Durkheimians and the ‘socialists of the Chair’ for politicising contemporary theory of the commons. Indeed, these authors have already addressed the problem of the articulation of the social and the common.
Forests have always been a common in their own right. Historically and etymologically, the forest has been conceptualised in opposition to the commons. Today, like many natural elements, it is the subject of particular and increased attention. While the ‘commons’ share common features, they are not in every way similar. Forests belong to all owners, public and private. As they are located on national territory, they are regulated by national land law. Some people see themselves as mere custodians of forests that belong to no one. For others, they ‘belong’ to everyone, through various activities carried out at the same time. This is particularly true for public forests where the ‘public’ is confused with the property of all and the use of every one. The legal status of the forest gives rise to a number of elements of the ‘common good’ - current, actual, potential, even past and renewed. In France, public and private forests are governed by the Forestry Code, which sets out common rules. Lawyers, citizens and managers are joining forces to think differently about forest ownership and governance. New common principles in forestry law are emerging from their renewed practices.
This article examines the Canadian and international legal frameworks for the repatriation of objects and for aboriginal land claim, both organised around the collective dimension of rights, a dimension that structures repatriation requests and territorial claim processes, to the detriment of more complex local normative practices. This article questions the legal frameworks, using data produced as part of a research project that shed light on the relationship maintained by members of the Ilnu community of Mashteuiatsh (Lac-Saint-Jean, Quebec, Canada) with a teuehikan (drum). This case underpins a relationship with the object and a normative system of relational ownership, a relationship erased by the current system of collective ownership.
On Canada's west coast, in a context marked by the historical erasure of aboriginal normativities, alternative visions are now being put forward by aboriginal peoples to rethink our relationship with aquatic spaces, particularly halieutic ones. In so doing, they are calling for their roles as stewards or guardians to be fully exercised in these spaces. Using examples drawn from the Kwakwaka'wakw and Nuu-chah-nulth peoples of Vancouver Island, this article shows how today's aboriginal peoples are taking note of the results of a particular history in order to propose alternatives that are both innovative and in continuity with the major relational logics that have characterized their relationship to the land and water since, we presume, time immemorial.
This article explores the concept of tribal self-identification in India, highlighting the process of "tribalization". Using the example of the Kalbeliya from Rajasthan, it examines how certain Indian communities perceive themselves as tribal due to social and cultural characteristics, despite holding a different official legal status. The text unpacks the internal and external factors that influence this self-identification, such as caste names and similarities with tribal communities or those associated with tribalism in the country. Ultimately, the article illustrates the complexity of indigenous identities in India, rooted in diverse historical, social, cultural, and economic contexts, while also highlighting the intricate dynamics of identity interactions shaped by the colonial legacy of legal pluralism.
