Common goods: substantial and processual prospectives

Abstract

The distinction between public property and private property, although resulting from art. 42 of the Italian Constitution, no longer seems to adapt to modern social consciousness and the emerging axiological legal framework. The logic of belonging and exclusivity is perceived by many as incompatible with the need to ensure widespread access to instrumental entities with respect to the free development of the person: common goods. The challenges of modernity - first and foremost, the fight against inequalities and the protection of the environment and ecosystems - lead to the question whether, by overcoming the binomial between what is public and what is private, it is not possible to take a third to recognize some assets (material or intangible, natural or human) as accessible to all, with a view to fullyrecognizing each individual of his or her personae status. The objective of this contribution is to verify what is the space, in the light of positive law, for the recognition of the category of common goods, both from a substantive perspective and from a procedural point of view. In particular, we will question the possibility of qualifying the res communes omnium as goods in the juridical sense, as well as the configurability, with respect to what should be common, of legal situations for the single uti civis. The substantive perspective, however, could not be complete without an examination of the possible guarantees offered by the legal system on the procedural side: we will therefore ask ourselves what possibilities the person has, individually or even through exponential bodies, to activate the process, especially to the light of the peculiar physiognomy assumed by conditions of the action in the administrative process.