Urbanities,
Vol. 4
·
No 2
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November 2014
© 2014
Urbanities
47
as the referendums on divorce and abortion in the 1970s. The use of public law is an
alternative to private and commercial law methods; it helps to avoid the negative results for
the community when public and private values are turned upside down. This brings to mind
the views of the Italian scholar Stefano Rodotà, according to whom common goods, such as
water, must be seen as fundamental rights. This would generate a new institutional logic
regarding common goods and, consequently, a substantial ‘paradigm shift’ in public and
private law and in public and private property, whereby the definition of common good
includes both goods which are essential for survival and goods which, for example, encourage
the free development of the person, such as knowledge (Rodotà 2012: 120).
Some Diverse Viewpoints on Common Goods
A point of view different and alternative to the above is given by Elinor Ostrom in her book
Governing the Commons
, published in 1990 at the end of a forty-year research on the
management of common goods. It is pointed out that in order to define a common good as a
resource, or more precisely as a common-pool resource, we need to consider it as part of the
economy because it binds the concept of common good to the potential benefits that may
result from its use. A relationship is also implied, among the users, which is independent of
the nature of the assets. In Elinor Ostrom’s empirical research, the latter are of the most varied
nature, from fishing grounds to water management, from the use of irrigation infrastructures
to common forest areas. More recently, Elinor Ostrom and Charlotte Hess have given a short
definition of common good as a resource shared among a group of people and subject to
dilemmas, questions, controversies, doubts and social disputes (Hess and Ostrom 2007).
That the use of a certain good is the subject of discussion definitely places such a good
in the field of institutional politics, whose goal is to find a solution to questions, controversies,
doubts and social disputes, as opposed to leaning towards maximization of profit. As
indicated by Ostrom’s research, this, in turn, generates the need to conceive a series of rules
that could be acceptable to all users — rules that promote equity, efficiency and sustainability
and that can be identified in all successful cases of common goods management. It is worth
noting that Ostrom’s point is in line with the approach known as neo-institutionalism. Elinor
Ostrom argued that the creation of new institutions is a great, difficult but worthy challenge
for the social and juridical sciences (Ostrom 1990). As Dolšak et al. significantly point out,
‘Human beings seem to have an intrinsic drive to organize, to build institutions, and to invent
a new system of self-governance. Thus, even if institutions at the level of national government
can indeed be nasty creatures, there are still hopes for the future’ (2003: 349).
As Deflem explained, in a neo-institutionalist perspective ‘the process of
institutionalization is a cognitive, not a normative matter, whereby institutions are conceived
as cognitive constructions that control human conduct even prior to any internationalization of
sanctioning norms’ (Deflem 2008: 148). So we need to envisage a new form of self-
production of legal rules. This is a key challenge for juridical sociology. An application of
Gunther Teubner’s theoretical framework to the case of water management in Italy brings out
a total incongruence between legal rules and social rules (Teubner 1987) involving critical
issues of legitimacy of the Law (Pardo 2000).