A Politicized, Legal Pluralist Analysis of the Commons' Resilience: The Case of the Regole d'Ampezzo

Abstract

"How does law affect the resilience of common-pool resources? To answer this question this paper adopts an institutionalist perspective on law, arguing that this shares many similarities with the approach of some legal pluralist scholars, i.e., the recognition that a social-ecological system is influenced by a plurality of legal orders having--to borrow Santos terminology--porous qualities. Studying the production and types of relationships between these legal orders can help us in determining whether a system is or is not likely to be resilient. More precisely, if the legal orders interact in a harmonious and dynamic way thanks to bottom-up as well as top-down forces, the system is likely to be resilient. This theoretical hypothesis is tested in a case study, i.e., an alpine common property in northern Italy called Regole d'Ampezzo. It becomes clear that its resilience to various shocks is due to the harmonic integration and adjustments of customary, property, and environmental laws. However, the completeness of this type of analysis is put under discussion when we move from the macro-institutional level to the micro-political one, i.e., to an analysis of intra-community power relations. Drawing on the work of Foucault on the power-subject nexus, the paper attempts to show that in the specific context of the Regole, the harmonic legal pluralist orders operate as a technique of government, perpetuating certain relationships of power between the actors of the common pool resource. At the same time, the relationships of power also contain the possibility of their reversal since, following Foucault, exercising power means acting on the actions of free subjects. The general conclusion is that a legal study of the resilience of common pool resources can benefit from a politicized version of legal pluralism."