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The theory of the commons and the complexity of its reception in civil law countries


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The theory of the commons and the complexity of its reception in civil law countries

University of Sherbrooke Faculty of Law, Room A7-235

Workshop with Simon Journet, a doctorate student in law at the Université jean Moulin Lyon 3 /Université Jean Moulin,  Centre Louis Josserand

This communication consists in observing, from a comparative perspective, the fate of norms and empirical institutions secreted by the ideology of the “commons” within countries of civil law tradition. Nourished by both abundant doctrine and delicate translation work, the notion of “common(s)” initially rooted in an economic theory and based on a common-law approach to ownership, upsets the architecture of civil law.

Faced with the diversity of representations contained in the notion of “common(s)”, this presentation will only sketch, through a definition of environmental communities, some features of the legal nature of the commons in terms of the theoretical models proposed by the civil law tradition.

The difficulties inherent in identifying its legal nature are the result of this delicate transition from one tradition to another. Indeed, the understanding of the “commons” is based more on inductive thinking derived from the rules of governance of resources, which raise various issues related to the organization of the enjoyment and disposition of the thing by the users.

Behind these considerations, which may seem technical, hides a much deeper interrogation: is the notion of “common(s)” the negation of ownership or the exploration of a different form of appropriation, of belonging, allowing one to go beyond supremacy of its private form in civil law?