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The Research Project 'Law of Environmental Commons': Beyond Public and Private

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Type: Conference Paper
Author: Malinverni da Silveira, Clóvis Eduardo
Conference: In Defense of the Commons: Challenges, Innovation and Action, the Seventeenth Biennial Conference of the International Association for the Study of the Commons
Location: Lima, Peru
Conf. Date: July 1-5
Date: 2019
URI: https://hdl.handle.net/10535/10610
Sector: General & Multiple Resources
Subject(s): commons
collective action
Abstract: "The research group called Direito Ambiental Crítico (Critical Environmental Law), from Universidade de Caxias do Sul (UCS/RS/Brasil), has as a hallmark the intersection between Environmental Law, Theory of Law and Political Ecology. The research project 'Law of environmental commons: beyond public and private', addresses the problem of the commons applied to Environmental Law. It posits that the 'commons' is a key-concept for studying environmental law and should be investigated more in depth in our area, since it embodies both material and symbolical grounds of human life. Group agreed to call 'Law of the environmental commons' the study of Environmental Law thought as juridical protection of the 'commons', that is, common goods of material and symbolic nature; common values; common knowledges and common/collective political action, directly or indirectly related to the protection of the environment. The research project is been developed through three main objectives. First one (1) is mapping the commons, that is, discovering the main uses of this concept (and its related expressions) in the history of ideas (in philosophy, politics, law, economics and so on) and accessing the cartography which has been made by many authors. This serves as a basis for case-studies studies in specific legal matters, of all members of the group. Second one (2) is mapping legal categories and rhetorical notions concerning the problem of the commons in Environmental Law. For example, Brazilian constitution creates several legal instruments for protecting “diffuse and collective interests”, cultural heritage and public goods. It also says the environment is 'a common good of the people'. Therefore, we are supposed to understand to what extent Brazilian superior courts apply this concept with any coherence and substance. The third step is using these conceptual tools [objectives 1 and 2] to carry out applied studies about concrete issues. The proposal is to investigate how legal and political terms are used in decision-making, echoing those theories in a decisive manner. Considering there are many narratives around the commons, we seek to differentiate those proposals and reflecting on how they contribute to understand the functions of 'private' and 'public' spheres/actors. The central assumption is that modern era, through State-Market duopoly, denied the commons as a dimension of law and justice – it’s simply not part of the legal architecture. For this reason, it is so difficult both to create and to enforce rights and policies related to the commons. State law should evolve to recognize and protect collective persons, collective goods and collective forms managing environmental resources; at the same time, protecting it and recognizing it´s autonomy. It’s needed to assign legal content to social systems which use material or symbolic resources through creative and sustainable manners – not for dictating rules, but for protecting collectivities who share spontaneous regulations and trust. The research project aimed to construct a theoretical framework, providing tools for other studies, subsidizing researches of a more restricted subjects, empirical studies and applications."

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