A POSTCAPITALIST PARADIGM: THE COMMON GOOD OF ...

“sell” them as if they were the shares of a public company. The Commons
is not the product of a sum of individual property rights, aligned
with the atomistic and individualistic paradigm. Commons are common
and shared resources and cannot be fragmented. Not even the State
can alienate Commons: when in the Code of Justinian it is said that natural
goods such as air and water are res communes omnium, this statement
affirms that not even the roman emperor has the power to decide
to alienate or enclose it (the doctrine of “public trust” originates from
here).
In most countries, the legal category of common goods has substantially
disappeared, having been reabsorbed in modern times into the
polarity between private goods and public goods (in the sense of goods
belonging to the State). Public goods – into which most of the Commons
which have not been privatized have been transformed – are now
being subjected to further cycles of privatization, determined each time
by national or local governments. And this is the reason why the movements
are now trying various different routes, including all legal and political
tools at our disposal, in order to remove any power of gov ernments
to make decisions on collective and social goods, for example by “constitutionalizing”
Commons and universal rights of access to them (the
constitutional area is precisely an area which is removed from the discretionary
powers of political majorities and governments), or by defining
the legal category of Commons more specifically, as being located
outside the dichotomy between public and private. The sole form of
property which enjoys strong protection in our legal system is private
property, while public property can easily be alienated and the category
“common” is barely recognised. In order to save Commons and public
goods from private appropriation, to react against privatistic and neocontractualistic
models of managing the public realm and to promote
radically democratic forms of self-government of shared goods, social
movements the world over are promoting referendums, Commons
charters and citizens’ bills in the search for a way to become “direct
legislators” and open together a new horizon for the future of Commons.
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