Remarks on Common Possession Between Law and History

1 Common Goods, Common Possession, and Dominium

Both in Yan Thomas and Giorgio Agamben’s reflections on public and common goods,^[1] the reference to common possession is crucial. In this view, the ‘collective’ nature of these goods is rooted in the collective co-possession by the citizens, in particular by avoiding the ‘monopolistic’ paradigm implicit in the system of ownership and dominium.

The theoretical paradigm of co-possession is essential to understanding the difference between the question concerning the holder of a dominium, the right of ownership, and the one concerning the legal rules governing the resource. The paradigm of collective possession over the commons shows the prevalence of everyone’s possession over someone’s ownership: in the language of Antonio Carcaterra,^[2] a Roman law scholar who worked with Thomas, possession represents the «signoria imperante» (transl. ‘commanding dominion’), as opposed to ownership which represents the «signoria spettante» (transl. ‘entitling dominion’).

Both philosophical inquiries and legal historical research outline a paradigm for managing ‘commons’ where the law is shaped by concrete praxises concerning the use of the resource by the community^[3] (usus publicus, ‘signoria imperante’ by the community) rather than the recognition of abstract titles of ownership or dominium. This means that the legal status of the commons is shaped by the factual, material relations that the community established with the resource (according to the adagio ex facto oritur ius).

The centrality of possession in the legal regime of commons confirms that commons are ‘the opposite of property’, as affirmed by the title of a seminal workshop on the commons that took place in 2003.^[4] The paradigm of (individual) ownership is not compatible with the reality of the commons and individual claims concerning the co-usage of a common cannot take the form of a traditional property claim.

2 Usus Publicus: An Historical Paradigm

The theoretical paradigm of ‘common possession’ is a useful tool to investigate both legal history and current issues concerning the legal management of common resources.

From the first perspective, contemporary discussions about the normative character of common usage push to reevaluate the Roman legal category of res in usu publico (transl. ‘things in the use of the public’), which was a class of goods (especially roads and rivers)^[5] toward which citizens had – uti cives – possessory claims vested in interdicta.^[6]

According to an excerpt from Ulpian’s Commentary to the Edict, Roman law recognized a class of public goods characterized by their availability to the public, as opposed to those considered as an asset of the State (res in patrimonium aerarii or fisci):^[7] while the last can actually be considered properties of the State,^[8] the legal relationship between res in usu publico and the community is difficult to reconstruct in terms of modern legal science, which usually reduces the question concerning the legal status of properties to the legal status of the holder of the correspondent right of ownership: in this perspective, the distinction between public and private properties lies in the different ‘nature’ of the holder of the right of ownership over them – a collective entity or a private individual. Whereas this criterion effortlessly applies to res in patrimonium aerari or fisci, in the case of res in usu publico, as pointed out by Riccardo Orestano among others, this approach is largely unsatisfactory:^[9] in his view, the latter class of goods were not primarily regarded as the property of an individual (including collective individuals such as the State or local communities), but rather as the object of a collective possession by the citizens.

The problem of reconstructing the nature of these public goods should be faced by focusing on the judicial remedies established for their protection, according to the trial-oriented mentality of Roman jurists.^[10] Ulpian’s aforementioned text suggests a strong connection between the emergence of this class of public goods and the enactment in the Praetor’s Edict of a corpus of interdicta vesting a spectrum of interests held by citizens toward those peculiar public goods.

Interdicts were private law remedies granted to individuals by the Praetor on the sole basis of his authority (magis imperii quam iurisdictionis).^[11] Contrary to actiones, which, at least in the process per formulas, took the form of instructions to the judge for the assessment of the lawsuit,^[12] interdicts were injunctions directly issued toward litigants, to act or to stop acting and remove the consequences of the behavior.^[13] These orders were issued by the Praetor, after a simplified causae cognitio, on the presentation of specific facts, rather than on the averment of the breach of a right and namely the infringement of a property (legal) title. The most revealing examples of this feature of interdicts are possessory interdicts,^[14] which were those interdicts aimed at protecting possession despite the existence of the correspondent right of ownership.

As previously mentioned, few interdicta for the protection of the interests of citizens to use res in uso publico were included in the Edict of the Praetor. Those interdicta vested various interests to use the public good with a possessory claim: they protected both individual interests to enjoy a specific advantage from the public good and collective interests for the public good (roads and rivers especially) to be available for the community. The Praetor would grant the relevant interdictum in favor of the individual which – in the light of the factual situation alleged – bore the relevant interest to use the good: in the case of interdicta protecting individual interests to the use of the good the sole person entitled to the remedy could be easily identified, whereas, in the case of interdicts protecting supra-individual interests to the maintenance of the material conditions of usability of the public good, the Praetor would grant the correspondent remedy to whoever made a plea (quivis de populo).^[15] The interdicta protecting the general usability of public goods could be instituted by everyone because every citizen has the interest to keep the usability of those goods.^[16] Analogously to interdicta protecting individual possession, the access to these possessory remedies did not depend on the existence of a legal title for the exclusive use of the resource in favor of the claimant: the only relevant status for the access to these interdicts was the Roman civitas.

3 A Proposal de iure interpretando: art. 1145 Italian Civil Code

Far from being a mere matter for antiquarians, the Roman regulation of res in usu publico – by means of interdicts protecting different shades of factual interests over the public good – can help modern legal scholars in interpreting existing legislation to reshape the legal status of ‘common goods’. A revealing example can be drawn by Italian law. It is surprising to find a reference to ‘possession of things extra commercium’ in art. 1145 of the Italian Civil Code (Codice Civile),^[17] since it explicitly suggests the possibility to establish a system of possessory remedies protecting the common usage of public good on the ground of existing legislation. The article – included in the section concerning possession – states that the possession of things extra commercium, though ineffective (co. 1), can be exceptionally protected by means of possessory remedies (co. 2 and 3).

Its content and phrasing are problematic and its collocation within the conceptual framework of the Italian civil code is difficult.

According to Italian civil law, public goods are in general considered to be properties of the State (or of local communities), even though many scholars notice how the right of ownership over demanio and other classes of public goods has a peculiar character.^[18] Therefore, the definition of public goods at issue in art. 1145 Codice Civile – identified as ‘things extra commercium’ (in the title), ‘things on which no one can have a right’ (co. 1), and ‘public domain’ (co. 2 and 3) – is surprisingly unclear. Furthermore, the fact that it states that the possession of public good is at the same time ineffective (co. 1) and vested in possessory remedies (co. 2–3) may sound paradoxical.^[19]

The major issue in interpreting art. 1145 Codice Civile, though, concerns the conditions of applicability of possessory remedies (azione di manutenzione e spoglio)^[20] against acts affecting the material benefit an individual enjoyed from the public good, that is the definition of the factual situation in which an individual can claim the possessory protection of his material interest in using the public good. Traditionally, Italian Courts maintained that only ‘individual’ possession, that is – according to the general definition provided in art. 1140 Codice civile – ‘the material power over the object correspondent to the exercise of the right of ownership or another limited real right’^[21] can be protected with the possessory remedies, also in the case of the object of possession being a public good. Consequently, the possessory remedies provided by co. 2 and 3 art. 1145 Codice civile can be applied only if a subject has a specific, peculiar, individualistic interest toward the public good, an interest that could be vested in a property right, whereas every claim concerning the possessory protection of interest to the public useability of the public good is rejected.

In doing so, Italian Courts understand the notion of possession included in art. 1145 Codice civile as it is the same as regular possession of private goods defined in art. 1140 Codice civile, even if art. 1145 explicitly states that it refers to ‘things on which one cannot acquire a right’. With respect to public goods, besides the cases where one individually enjoys the good, a possessory claim aiming at the maintenance of the availability of the good to the public is conceivable. Some cases decided in Italian Courts,^[22] though, open up the possibility to apply this piece of legislation to a broader spectrum of the factual situation: sometimes Courts have been stating that also the general interest to keep the conditions of usability of a public good can be a legitimate cause of action for instituting the possessory remedies provided by art. 1145 Codice Civile. The casuistic recorded in Roman law sources shows how possessory claims can be used to protect collective or super-individual interests.^[23]

4 Provisional Conclusions

The two paragraphs above aimed at bridging Roman legal history and positive law and tried to draw a path toward a legal conception of co-possession of common goods. In the historical experience of ancient Roman law, one can find a remedy-based model of protection of common usage, based on the applicability of possessory remedies (interdicta) to public goods. In assessing recent interpretations of art. 1145 Codice Civile, we drew a path for an application de iure condendo of this model, where possessory remedies (azione di manutenzione and di spoglio) could be issued for the protection of the common usage of public goods.

In both scenarios, the legal protection of common goods is achieved by recognizing specific possessory claims concerning the use of the resource, rather than by granting an individual (here including a ‘collective individual’ as the State) with the general monopoly over its management and exploitation.^[24] In this model, the way to use the resource is not defined by the unilateral will of an individual granted with the right to exclude anyone else from decisions concerning the use of the resource but, rather, shaped by the convergence of different factual interests held by the citizens toward the public good.

The legal system, by providing factual criteria for the enforceability of those interests, selects the types of interest that concur in defining common good without setting a rigid, a priori order of prevalence among them: possessory claims are reconcilable in unity, beyond the hierarchical scheme governing the relations between real rights.^[25]

Of course, this regulation, based on balancing different possessory interests outside a fixed hierarchical framework, questions the role of the judge as intended in Civil law systems. The fact that, as pointed out before, Romans called interdicta as remedies magis imperii quam iurisdictionis and that Italian Courts are cautious in applying art. 1145 Codice civile reveals the ‘political’ responsibility the Magistrate or the Judge needs to assume in this complex balancing.