When the commons put the law on test

Serge Gutwirth, Isabelle Stengers

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Abstract

Despite the tale of their tragedy, the commons are driven by an agreement or « government » (E. Ostrom) and the shared concern not to destroy the resource from which all depend. Their disappearance is the result of an eradication by the collusion of the freedom of enterprise of the owners, and the sovereignty of the owner in the square, the State. If the current resurgence of the commons can herald an urgent and needed change of behaviour it is because of the renewed sense of sustainability it expresses at the time of the threats linked to climate change. This resurgence nevertheless frontally collides with the current law which has inherited from their eradication.
In this article the authors explore the obstacles against articulating the current applicable law and what is demanded by the life of the commons. Since the commons necessarily generate the development of local and vernacular law, a fundamental tension with the principle of the rule of law comes to light.
Original languageFrench
Pages (from-to)306-343
Number of pages38
JournalRevue Juridique de l'Environnement
Volume2016
Issue number2
Publication statusPublished - Jun 2016

Keywords

  • Commons
  • property
  • Ostrom
  • sovereignty
  • Climate change
  • Sustainability

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