dc.description.abstract | Once a modern definition of “juridical goods” was shaped, the present dissertation
has aimed to examine the so-called commons.
For this purpose, some of the most qualified definition of “juridical goods” have
been examined, so that the “proprium” of this concept could be drawn from their
interpretations; this “proprium” has been identified on the ontological destination to serve
the whole community; therefore, it’s been affirmed that the “commons” are those goods
whose essential utilities are functional to the fulfillment of certain collective needs that
correspond with the exercise of fundamental rights, as well as to the free progress of the
individual. So, in these goods ontological and teleological profiles mix up in an un
inextricable tangle, ending up – such as in the Aristotelic idea of “unmoved engine” – to
coincide: an asset might be defined “common”, excluding all the other possible evaluations,
if it turns out to accomplish the interests of the whole community. Hence, it’s been
revealed how “commons” can ontically fulfill themselves only through the enlivement of
their own teleology: they need – so that they can abandon Plato’s hyperuranium, to
concretely come to existence in our legal system – to put themselves at the service of the
generality of the associates, that is the common good.
From this point on, we have asked ourselves about the compatibility between the
structural architecture delineated by the theorists – that, outside of the typical public and
private ones, have postulated the perspective dimension “of the Common” – of the
aforementioned notion and the constitutional outline, locating a significant grade of
convergence between the ideological background inherent in the aforesaid commons and
the assiological hierarchy shaped by the Constituent: in this regard, it’s been outlined how
the major support to the concept of “common” can’t be directly traced in the analysis of
singular articles of the Fundamental Law, but mostly in its unitary project, in his scheme
based upon the incontrovertible affirmation of personalism, in its solidaristic vocation. In
fact, if it’s undeniable that in constitutional norms no explicit reference to the commons
can be found, it’s likewise irrefutable that in the Fundemental Law the principles of
participation and centrality of the individual are clearly ratified; also, the claim of social
rights seems to be absolutely irrefutable, harmonically linked to property’s social function
and the regulation of economic initiative to fulfill social utility.
Once this synchronicity was verified, we have inquired whether this “Commons’
Category” can be actually codified, ending up – due to certain unsurmountable doctrinaire
issues – denying the possibility of inserting it in the legal system. Many argumentations
have been used on the basis of this conclusion: the impossibility to delineate – because of
the poietic relationship existing between fundamental rights and commons, whose main
consequence is that, anytime a new fundamental right will be recognized, it will be
necessary to classify among the commons all those entities whose utilities turn out to be
indispensable for the realization of this new-born right – a taxonomy of commons; the
atavistic difficulty to plan paradigms of governance of common resources – particularly
when they must guarantee the factual participation of a significant amount of individuals –
that can both allow to reach a sort of “Pareto Optimum” in the management of those
resources themselves and, simultaneously, avoid to misdirect them from their
communitarian vocation; the dogmatic vulnera that would certainly connote the discipline of
the retrieval process of the goods deemed to be common.
Provided this notion, it’s been admonished that from this hermeneutical work can’t
be necessarily inferred the fact that the ideological humus on which the notion of common is
erected and the social instances formed around it are not worthy of any safeguard at all. In
fact, the smoldering pluridisciplinary debate generated by the aforementioned expression is
nothing but a symptom of the widespread unease caused by a socio-economic crisis, in
which all the legal system – and not only the Italian one – often sacrifice, on profit’s altar,
the undeniable right of the individual. So, postulated that forging another category of
goods seems impossible, it stands the unavoidable need to remark that it’s essential to
ensure that the resources beneficial to the exercise of fundamental right are subtracted –
partially, at least – from the tumultuous logic that feeds the lex mercatoria. This particular
aim – far from assuming the bestowal of legal citizenship upon commons – can be
pursued by submitting both the public and the private goods that match the aforesaid
characteristics to certain specific limitations; for this purpose, the typical scheme of
appropriation of public goods may be adopted, but only after having prepared some
appropriate modifications, aimed to transform it in a suitable safeguard to citizens’ rights.
Explicatively, at the conclusion of this argumentative path, it’s been reached the
conclusion that – in the virtual age, in which next to the natural reality stands the digital one;
in which human life doesn’t develop only along the narrow borders of materiality, but it’s
unraveled in the space of the endless web –the discussion around the perspective
dimension of commons, as a third way between public and private, has to be rewarded
with the merit of having offered to the interpreter the opportunity to cogitate about the
undelayable necessity of reforming the applicable discipline of juridical objectivity,
simulacrum of an extinguished society, existing today only in the history books, as well as
to identify normative solutions suitable to halt the always-increasing unequal distribution of
resources.
At last, in a comparatistic spirit, other ownership’s situations have been examined,
based upon the absence of the mechanism of the so-called ius excludendi omnes alios, in order
to demonstrate that the paradigm of solitary property does not represent – though, in the
Western Legal Tradition, still dominant – the only instrument able to synthesize the
relationship existing between man and res.
Precisely, this further study has focused upon the peculiarity of the discipline of the
archetype of real rights in China, where – aside the public and private ones – it’s
contemplated the collective property, fulfilled expression of its own communist ideology,
connoted by the criteria of participation and shared management, to which the legal system
confers a distinct significance.
The final stage of this investigation has coincided with the examination of a typical
Swedish Institute: the “allemansrätt”, habitual right that allows the generality of the
associates to take advantage of the faculty, whenever the prerequisites may occur, to enter
certain private estates. [edited by author] | it_IT |