Filipo Valguarnera: Legal Ideology and the Commons: Why Are Jurists Falling Behind?

The last quarter of a century has featured a surge in interest and studies on the commons, spearheaded, of course, by the efforts of Elinor Ostrom. These efforts have problematized the once well-established paradigm of the tragedy of the commons most clearly described by Garrett Hardin in 1968. One could say that the commons, thus, have become a fundamental field of study in most social sciences.

This is not the case in the field of legal scholarship (with one noticeable exception that I will discuss later), which leads me to the overarching issue of this presentation, namely the difficult relationship between jurists and the commons. The phrase “difficult relationship” does not refer to an explicit antagonism, but to something even worse: complete indifference and a scandalous lack of knowledge. While my main purpose is to try to explain this sorry state of affairs, I also hope to make a more general point on the nature of law and legal change. In this sense, the commons can be considered a case-study in legal theory.

The main issue of this presentation can be articulated in a few sub-questions:
a) What is the status of commons in the Western European legal discourse?
b) Why do most legal scholars pay such a poor attention to the growing literature on the commons in other disciplines? What factors contribute to this peculiar case of cultural deafness?
c) What promise of improvement does the future hold?

Filippo Valguarnera is an associate professor in comparative private law at the University of Gothenburg. He defended doctoral thesis in comparative law at the University of Florence in 2007. he subsequently worked as a visiting fellow at the University of Uppsala (Sweden) and at New York University. His main field of studies is comparative law, with a special interest in property and civil procedure. He published two books Legal tradition of Nordic countries (2008) and  Access to Nature between Ideology and Law (2014).