Law, Enclosures, and Relationalized Property

Description

To start I discuss what we are talking about when we talk about law? This seems important to me, because there is a tendency to overburden law with expectancies it cannot meet. It is therefore necessary to make a difference between “axiomatic law”, namely the rules, norms and legal concepts that belong to the sources of law (mainly legislation, which is politics dealing with everything else) and “topical law”, namely the law itself, law in action – which is a creative practice that opens towards inventive constructions and interpretations, but at another level than general rules, a sort of speculative pragmatism. (Compare: soccer is not ‘the rules of the game’, no, it is how you play within the constraints of this game: it is never just ‘applying’ the rules of soccer, it is playing, well or bad, that depends on your capacities and talents as a football player).
Doing law is thus always local, concrete, and issue-linked: it is thus “relational” and embedded in living “interdependencies” (which indeed meets what I would call and “ecological ontology”). So, as regards the commons, no big general statements, but hard legal work in a hostile environment of legal sources. Changing legislation is indeed a priority of political activism, but that cannot be the focus of legal work.
Reference: GUTWIRTH, S., “Providing the missing link: law after Latour’s passage”, in K. McGEE (ed.), Latour and the passage of law, Edinburgh U.P., 2015, 122-159 https://works.bepress.com/serge_gutwirth/113/

From the point of view of commoning such legal work is extremely difficult because the legal sources as they exist today are a tributary of the enclosures and the eradication of the commons which had a comfortable 250 years and the powers of capitalisms to thoroughly install itself, as if individualism, productivity, extractivity and human exceptionalism were a natural given. Those characteristics of capitalism strongly transpire in the norms stemming from the legal sources and are fundamentally at odds with the generic characteristics of communing.
Nevertheless, both at the level of axiomatic law and topical law, we can detect respectively original and surprising norms (e.g. legal personality of rivers, usi civici, customary law, …) and inventive constructions by the legal practice (e.g. redefining property as ‘habitation’, CLTs, the neutralizing of the abusus, a rediscovery of possession against property, …)
References: GUTWIRTH, S. & I. STENGERS, “Le droit à l’épreuve de la résurgence des commons”, Chronique: Théorie de droit, Revue Juridique de l’Environnement (RJE), 2016/1, 306-343 (also via: http://works.bepress.com/serge_gutwirth/119/)
TANAS A. & S. GUTWIRTH, “Une approche ‘ecologique’ des ‘communs’ dans le droit. Regards sur le patrimoine transpropriatif, les usi civici et la riviere-personne”, In Situ. Au regard des sciences sociales, 2021, nr. 2 (12 mars 2021), 31 p. (https://journals.openedition.org/insituarss/1206)
GUTWIRTH, S., « Les communs : avec, malgré ou contre le droit ? », Journal des Tribunaux, 2022, Vol. 141/nr. 33 (open acces via https://jt.larcier.be/publications/jt_2022-fr/jt_2022_33-fr/jt2022_33p582 )

Period	14 May 2024
Event title	Infrastructures of Commoning
Event type	Workshop
Location	Hamburg, Germany, Hamburg
Degree of Recognition	International