In the last ten years, the concept of the commons became popular in social studies and political activism and in some countries domestic lawyers have shared the interest for this notion. Even if an (existing or proposed) statutory definition of the commons is still very rare, lawyers get familiar with the concept of the commons through the filter of property law, where such a concept has been quite discredited. In fact, approaching property law, many students of different legal traditions learn the origins of property rights revolving on the “tragedy of the commons”, the “parable” made famous by Garrett Hardin in the late nineteen-sixties. According to this widespread narrative, the impossibility to avoid the over-exploitation of those resources managed through an open-access regime determines the necessity of allocating private property rights. In this classic argument, the commons appear in a negative light: they represent the impossibility for a community to manage shared resources without concentrating all the decision-making powers in the hand of a single owner or of a central government. Moreover, they represent the wasteful inefficiency of the Feudal World.

This vision has dominated social and economic studies until 1998, when Elinor Ostrom published her famous book Governing the commons, offering the results of her research on resources managed by communities in different parts of the world. Ostrom, awarded with the Nobel Prize in 2009, demonstrated that the commons are not necessarily a tragedy and a place of no-law. In fact, local communities generally define principles for their government and sharing in a resilient way avoiding the tragedy to occur. Moreover, Ostrom defined a set of principles for checking if the commons are managed efficiently and can compete with both private and public arrangements of resource management.

Later on, under an institutional perspective, the commons became the tool of contestation of political and economic mainstream dogmas, including the unquestionable efficiency of both the market and private property in the allocation of resources. The research of new tools for managing resources has been carried out in several experimentations that generally occurs at the local and urban level: scholars and practitioners define these experiences as ‘urban commons’.

This term refers to a series of experiences in which groups of active citizens organize themselves from the bottom-up to take direct care of urban immovable goods, often urban voids or abandoned spaces, with the aim of managing and administering them through open and participatory governance mechanisms. In these experiences, the so-called commoning phase takes on fundamental importance. This is the phase in which a group of people demands the care, direct and participatory management of a given asset, emphasizing its importance for the satisfaction of the rights of the community or for its social cohesion. In this sense, they are ‘generative’, since they contribute to improving the quality of life and the community’s welfare.

The main characteristics of these experiences can be summarized as follows:

a) the presence of a good in need of care and regeneration because it is in a state of abandonment or to which, for other reasons, access by the community is denied (the asset is often in public ownership but this is not always the case);

b) the presence of a community of citizens who decides to take care of it, adopting democratic and participatory procedures;

c) the management of the good in order to offer services of a collective nature, directly related to the social cohesion of a given community or to the satisfaction of fundamental rights.

Although these occurrences, especially in their early stages, are largely based on informal dynamics, law is central to them. It is clear, in fact, that the self-organization of a community with regards to the use and management of an asset is, in the first place, an institutional matter.

In fact, since the assets mostly belong to public institutions, and especially to municipalities, communities are often engaged in collaborative processes with local administrations which are mainly based on a path of participatory co-planning on the shared use and management of the estate. Nevertheless, conflicts are possible to the point of communities taking the form of illegal occupations: in this case, paths of transformation from illegality to legality can be observed.

Especially after the crisis of 2008, urban commons are becoming an essential component of urban regeneration local policies: the attempt of creating fruitful collaboration between public institutions and communities for saving abandoned buildings or open areas seems to be a constant trend in urban regeneration.

To better understand and study such phenomenon at the European level, within the framework of the Horizon 2020 program, the EU has funded the project “Generative European Commons Living Lab”, leaded by the Department of Law of the University of Turin, grouping together partners from Italy, Spain, the UK, Greece, Belgium and Austria.

The project aims at mapping, connecting and studying experiences of formal groups or informal communities of citizens who manage hubs, incubators, co-creation spaces, social centers created in regenerated urban voids and providing welfare services. 

So far, the project has mapped more than 200 experiences of communities and of local public policies implemented for promoting generative commons. A pilot group of 56 cases (spread in 15 countries and 43 cities) underwent a survey, aimed at highlighting the main organizational, legal, economic and social features of the phenomenon of urban commons in Europe.

gE.CO living lab has so far allowed to shed a light on three main elements.

First, the fact that, in European urban areas, many individual and collective needs, the fulfilment of which has traditionally been conceived as an exclusive prerogative of the public, are, to the contrary, satisfied through experiences of bottom up self-organization of citizens and local communities.

Second, that such experiences, far from being marginal or negligible, are extremely relevant with respect to both, their diffusion and the social impact they produce. Indeed, our findings suggest that urban commons represent the third great axes of urban welfare and regeneration, together with (and peer to) the (better known) solutions coming from public bodies and private actors such as for-profit and non-profit organizations engaged in urban development and social innovation.

Third that urban commons have the characteristic of putting together the satisfaction of one or more specific needs (or rights) with the renovation and regeneration of urban voids, buildings or even entire areas.

All these experiences are very different from one another. However, in terms of policy, they bear certain specific common elements suggesting that they shall be considered together.

Such elements can be summarized as follows:

• Self-organization by one or more groups of citizens, resulting in formal or informal structures
• A certain degree of participation and democracy within the decision-making processes of the organization
• A certain degree of institutional innovation and creation of new institutional structures.
• The community, organized through participatory processes, enacts activities aimed at satisfying individual and collective needs
• These activities result in the regeneration of both specific buildings and urban voids, often abandoned and unused or even of entire urban areas

For quite a long time, public authorities have been reluctant in promoting and considering these experiences. In some cases (especially in those situations where generative commons took the form of illegal occupations), local authorities strongly contrasted and opposed them.

However, our findings suggest that, especially in the last ten/fifteen years, this attitude has changed considerably and that public authorities are more and more willing to promote, protect and foster generative commons.

This very significant shift can be explained by the following factors:

• Public authorities are starting to realize that generative commons can often promote urban regeneration and welfare in a very effective way, and at a cost often lower than the one needed by traditional tools of public or public/private intervention.
• Most of the times (although not always) generative commons lay in public buildings which could not be differently regenerated due to the lack of resources of public administrations. This phenomenon is very widespread, to the point that certain cities, precisely because of that, have decided to use generative commons as a general strategy for the management and regeneration of public spaces, making them a guideline of local public policies.
• Both the aforementioned factors became extremely relevant after the economic crisis of 2008 and also during the current Covid-19 emergency. Now, many generative commons are investing their resources in order to find cooperative-based solutions to the main issues the current crisis has posed (shelter, food, care of kids due to the school lockdown etc.). We have deepened this latter aspect here: https://www.youtube.com/watch?v=PCBN0VVrr5A
• In many cases, generative commons became extremely relevant for the life of the neighborhood or the city, aggregating hundreds of people of very different age, class, ethical background etc. in different activities. In other words, generative commons can be fundamental for the social cohesion if entire urban areas and, because of that, are often supported by a widespread political support by citizens.

The steps undertaken by public administrations around Europe to promote and protect urban commons took very different forms:

• Almost all the public policies aimed at promoting and protecting generative commons are taken at the very local level: most of the time at the municipal level, sometimes at the regional level.
• The common ground of these public policies is to set forth a new way of conceiving the relationship between public administrations and communities. Indeed, they implement a relationship which is not vertical (or top-down), but rather authentically horizontal and inspired to the principle of subsidiarity. Put in other words, these policies enact a legal regime which is based on the peer collaboration of communities and public bodies in the management and stewardship of the public space. We call this kind of agreements public-civic partnerships. This phenomenon is extremely relevant, since it overturns the traditional underpinnings of administrative and public action, which sees the only possible alliance with the private sector in terms of “public-private partnership”, where the private partner is usually a market stakeholder set up in the form of an incorporated actor. Public-civic partnerships arising from the co-management of urban commons show how the public can find an ally in another form of non-public actor: local communities and groups (even informal groups) of citizens. Precisely because of this innovative strand, the concept of private-civic partnership has started to be debated both in legal scholarship and administrative practice. However, publications on the matter are not as many as it could be expected. This is mostly due to a lack of a reasonably comprehensive database of the main experiences enacting this innovative way of urban governance, which being very local is, of course, likewise very scattered. This is one of the gaps the database set forth by the gE.CO project aims at filling.

To conclude, our findings suggest that:

• Generative commons, although in a variegated and heterogeneous matrix, amount to a very relevant and widespread phenomenon at the European scale, which describes a new proactive model of urban governance and innovation.
• The establishment of generative commons is a very effective strategy to make European urban areas more resilient and inclusive, and proved to be an extremely important way to promote welfare and urban regeneration, especially in periods of crisis.
• The promotion of generative commons by public authorities is very relevant for their diffusion, stability and implementation.
• The nature of generative commons calls for an authentically “glocal” policy structure. The more effective way to promote generative commons is through policy promoted by local authorities.

It is interesting to highlight that the phenomenon of Urban Commons can precisely be considered as a matter of European law and policy. On the one hand, the several law, regulations, and administrative practices enacted by local bodies seem to design a new strand of common core of European administrative and private law. On the other, the instances at the cornerstone of urban commons are emerging even the level of European Institutions, where they can especially be found in the framework which has conducted to the adoption of the new Leipzig Charter.

Indeed, the approach taken by the new Charter:

• Stresses the idea of the “co-creation” of the city between citizens (local communities) and institutions;
• Highlights the strict connection between this idea of co-creation of the city and the production of welfare services;
• Upholds that this phenomenon is able to promote more inclusive and sustainable cities and highlights its important role with respect to many urban issues such as poverty, pollution, urban marginalization, housing etc.
• Recognizes how all this calls for an integrated methodology of public policy, which sees its cornerstone into local public bodies.

The phenomenon of urban commons in it European dimension needs to be further studied and deepen, through an approach involving scholars and practitioners of different fields. For this reason, we have launched a call for papers (https://generative-commons.eu/it/call-for-papers-3/) for a conference which will take place in Turin in June. Send your application (deadline on January 31^st).

Alessandra Quarta

Associate Professor of Private Law – University of Turin

Antonio Vercellone

Post-doctoral researcher in Private Law – University of Turin

Alessandra Quarta is Associate Professor of Private Law at the University of Turin and coordinator of the HH2020 Project Generative European Commons Living Lab. She is also part of the CO3 HH2020 Project. Her main research interests focus on property law, the commons, contract law and law and technology.

Antonio Vercellone (PhD –  Bocconi University) is currently post-doctoral researcher in private at the University of Turin and he is part of the Generative European Commons Living Lab Project. His main research interests are property law, the commons and family law under a queer perspective