Urbanities,
Vol. 4
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No 2
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November 2014
© 2014
Urbanities
46
In other words, in the classical Rousseauian view of general will (Rousseau 1782) as
in the Weberian paradigm (Weber 1968), law-abiding implies citizens’ voluntary submission
to the Law. In the water management case, the majority of Italians have expressed their
dissent; clearly, those in favour of public water management are not merely ideologically
oriented against the free market; rather, their actions suggest a civic awareness that
privatization can negatively influence people’s quality of life and, perhaps more gravely,
democratic citizenship itself. Against such a background, the attitude adopted by the
Legislator comes across as authoritarian and patronizing. The fact, of course, remains that
civic communities must be accorded the right to choose public or private water management.
The Public vs Private Issue
I would suggest that the opposition public vs private should be addressed from a juridical
point of view and, most important, that rules must reflect society’s needs and expectations.
Historically, in Italy water management was kept independent from the market
through principles of Public Law. This has changed dramatically, as over the past twenty five
years privatization and free market trends have been injected into the system. The opposition
to privatization which I have outlined has generated the present debate on water intended as a
common good and the heartfelt need to envisage regulation beyond the private/public
opposition, tailoring the use of this resource best to fit the needs of the community.
17
However, the discussion has also brought forth strong criticism of inefficiency and corruption
in public Italian administration in a situation in which the concept of national state has been
weakened by globalization.
During the 1970s, Norberto Bobbio (1977) asserted that from a logical point of view
there was no alternative to Public and Private Law and pointed out that, necessarily, relations
of power are excluded from private law while private convenience and interests are excluded
from public law. Therefore, it is not surprising that in relation to water and more generally to
common goods this issue of public and private law has generated strong debate.
In the field of social sciences the distinction between public and private law was based
on the idea that Private Law concerned individuals, their private interests and the relationships
between equal citizens, while Public Law concerned relationships between entities of
different status in the community. According to Bobbio, in the 1970s two opposite processes
were taking place, the nationalization of the private sector and the privatization of the public
sector. They are incompatible but also overlap. The first involves the subordination of private
interests to collective interests, represented by the state which progressively invades and
incorporates society; the second represents the revenge of private interests through the
establishment of conglomerates which use public apparatuses to reach their goals (Bobbio
1988).
The case of water management is significant because the defence of public water has
encouraged movements to intensify democratic participation. It is especially so because this
kind of action has happened in Italy only for short periods of time and in specific cases, such
17
On this debate see Mattei (2011), Marella (2012) and Rodotà (2012).
