UNIL principal investigator
Prof. Denis Tappy, Faculty of Law, Criminal Justice and Public Administration
UNIPD principal investigator
Prof. Raffaele Volante, DPCD
Joint seminar / conference involving early-stage researchers
The project concerns the legal regime of property in collective ownership, i.e. those woods and pastures that belong to a specific community since only its members have the right to use them exclusively. This form of ownership stems from customary rules typical of the subsistence economy of the Middle Ages. For this reason, civil legislation from the late 18th century onwards has consistently attempted to suppress collective property, which they saw as a curb on economic development.
The Swiss cantons were an exception to this historical process, already documented by 19th-century jurists (Romagnosi). Today, 22% of the forests and a large part of the alpine pastures in the Helvetic Confederation are in collective ownership under the name of Bourgeoisies, Patriziati, and Allmende, but with great diversity from one canton to another.
The Italian case is the opposite: unitary legislation after 1861 fiercely fought collective property, with liquidation procedures that were supposed to bring all land into private or public ownership. These attempts clashed with the robust resilience of collective property, which today covers about 10 per cent of the national territory. A recent law (2017), made after many rulings on the matter by the Constitutional Court, stipulates that collective property must be managed by municipalities separately from other public property. In this way, Italian law has unwittingly reproduced the distinction between commune politique and commune bourgeoise of Swiss law.
The project's main objective is a new approach to the study of property as a legal order.
Modern economic theory has shown (Ostrom) how, in many cases, the exploitation of natural resources in marginal territories occurs with strategies of collaboration between stakeholders. These strategies show the complexity of the legal problem of property, which goes far beyond the simple regulation contained without substantial differences in European civil codes.
The project thus aims to initiate a long-term scientific collaboration between UNIL and UNIPD on the legal history of the various regimes of collective ownership and the current legal regime of collective assets in both legal systems.
This project will simultaneously develop along three lines of research.
- The study of the customs of some collective property present in both systems by identifying some case studies. Collective property is always the result of a specific set of customs that, over time, have resolved conflicts over the use of land and its primary resources. This line is concerned with isolating patterns to construct a taxonomy of forms of collective land use.
- Comparative study of nineteenth and early twentieth-century legislation. This line aims to reconstruct the debate on collective property in Switzerland and Italy when both systems formed unitary civil property legislation based on Roman law but arrived at very different ends.
- Comparative study of existing legislation relevant to collective property management. Land held in collective ownership has remained, therefore, unchanged. The questions this line of research seeks to answer are thus twofold:
- how the customary rules of property management can relate to the laws on landscape protection;
- how collective goods may be opened up today to uses other than those typical of a subsistence economy.
The results of this first phase of research will be published in a volume, as well as in leading journals in the area of legal history.
Two public seminars will be organised, one at UNIL in March 2023, the other at UNIPD in October 2023, open to the participation of students and PhD students.
Potential for follow-up activities
The project can have implications for legal research and identify new perspectives for interdisciplinary research.
A new history of property law has, first and foremost, repercussions on the specific level of legal science. The property rights that 19th-century legal science reconstructed on the Roman model was part of constructing the modern idea of political sovereignty: a single public power over the territory had to correspond to a single model of private property.
Therefore, constructing a new history of private property means posing new problems for public law, both in its administrative and constitutional dimensions.
Interdisciplinary research perspectives can cover different sciences, from anthropology to climatology to genetics.
As far as anthropology is concerned, the study of collective property customs can identify the cultural specificities of the populations concerned. The same goes for genetics: collective property means the resilience of a population on its territory, which implies the possibility of differentiating its genetic heritage.
Finally, a climatological study by the University of Lausanne (SCIENCE 376, no. 6597) has already shown how climate change makes large mountain areas increasingly green. Possible development of the project could be identifying a specific protection regime for these areas that would once have immediately passed into collective ownership.