Post by Henry Smith
Last week I took part in some events at the Intensive Doctoral Week at Sciences Po in Paris. This is a conference for Ph.D. students in law from all over France, organized by Mikhail Xifaras of Sciences Po Law School, and it features panels devoted to a wide range of topics. One of two on property focused on the future of communal property, with panelists Bob Ellickson, Séverine Dusollier, Maria Rosaria Marella, and myself (with my name spelled “Henri” no less!). The notion of common property has a long pedigree and is very important in the work of legal scholars such as Bob Ellickson and Carol Rose and economists such as Gary Libecap and Elinor Ostrom. The Europeans have a renewed interest in communal property for two reasons. First, they believe that it is a way of breaking down the supposedly hyper-individualist notion of property enshrined in the civil code. Second, communal property can be used to solve cutting-edge problems like providing new forms of low-income housing.
From a private law point of view, a fundamental difference between European and American perspectives was thrown into sharp relief. Bob Ellickson gave examples such as classrooms as communal property and café sidewalk seating as a privatization of a common space. This puzzled the Europeans. The European insistence that something was at stake in whether a community land trust was a legal person or not was equally puzzling to us Americans.
Here in a nutshell is the legacy of Legal Realism – or its absence. French and Italian perspectives on law are all about legal normativity: it matters deeply what the law says on a given topic. In contrast, over here we tend to focus on who gets to do what where – as in Bob Ellickson’s examples. As I see it, the New Private Law tries to navigate between these perspectives. Legal normativity is not the only story, and who can do what is an important bottom line. At the same time, legal concepts matter, at least as one of the means to the end of solving problems – in this case potential conflicts over the use of resources in which the public takes an interest.