The ecology of law: the South as laboratory of legal pluralism?

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This article belongs to the Figli di Annibale stream.

There was a time, particularly in the course of my training as a lawyer, when I held a straightforward answer to the question «What are the sources of the law?». The sources of law – I recall as I thumb through the handbook of Italian constitutional law (R. Bin & G Pitruzzella, Diritto costituzionale, Turin: Giappichelli 5 ed.) that grounded my certainties of old – are those

[acts or events which] the legal system acknowledges as productive of norms, i.e. which are capable of innovating the legal system itself (p. 275).

Of course, the authors of this statement do not fail to acknowledge a certain circularity in their definition: to say that the legal system can prospectively regulate the sources of its production does not even begin to engage the (retrospective) question of how one such system has come to be. The effect of this circularity is to present a centralised system of law-making – one that is able authoritatively to name its sources as a closed list – as the way a legal order is supposed to work, without revealing it as the historical enactment of a particular image of the law.

With the benefit of hindsight, it astonishes me how I did not find this strange, when I first encountered it during my legal studies. However, that uncritical acceptance perhaps proves the very point I am trying to make: that part of the professional habitus of the jurist – as member of a professional élite – includes strategic invisibilities such as this one. The legal profession, in other words, can only work as a specialised technical domain insofar as it holds up an image of the law as a closed system, capable of defining autonomously the processes by which it may be changed, whilst being sheltered from the risk that its production of norms be overtaken or contested by the materiality of bodies in space.

The ecology of law

On this question, the latest book by Fritjof Capra and Ugo Mattei – The Ecology of Law – undertakes a cleansing meditation on the origins of this image of the law we take for granted, when we become engrossed in the goal of «training» a technical élite of jurists. Capra and Mattei offer instead the provocative argument that bodies, both human and other-than-human, and their ways of inhabiting space are the animating forces of a primal, vernacular (i.e.«grassroots») process of norm production – reclaiming it from the abstractions and invisibilities of law handbooks.

To get to this proposition, Capra and Mattei offer a parallel recollection of the onset of modernity in science and law. What emerges from the synoptic assessment of the two histories is the gradual emergence of a mechanistic paradigm, which subordinates the living to abstract rules – to which the former obeys, but which it does not autonomously produce. In science, this passage is marked by the relinquishment of those paradigms – like those of Goethe and Leonardo – that held it to be the task of scientific observation to nurture an intuition of the spontaneous emergence of organic forms. In their stead, science becomes a discourse centred around supposed «laws of nature», of which Newtonian mechanics is perhaps the most accomplished articulation. Mirroring these changes in scientific thought and practice, Capra and Mattei observe how also in legal thinking one witnesses a tendency towards centralisation and abstraction of norm production (in the authority of the nation state): a function that was instead undertaken – throughout the Middle Ages – in a fundamentally pluralistic way, pulsating through the diffuse centers of power of the time, and mediated by the movement, resistance and reciprocal accommodation of bodies in space.

Yet, modernity has not gone unchallenged. Indeed, they remark how scientific thinking has been contaminated – since at least the beginning of the twentieth century – by a growing ecological sensitivity. As a consequence of the ecological turn in the sciences, the emergence of order in the living world has been newly appreciated as an immanent process, where «form» self-organises and attains greater definition through its unfolding. On the contrary, Capra and Mattei observe that a similar shift is yet unseen in legal thinking. The grip of modernity on legal production, if anything, seems to have tightened by polarising the legal imaginary around two prongs of a deadly pincer. Private property, on the one hand, guaranteed by the coercive power of the state, and the monopoly over the production of norms, that too vested in the state. Through these two conditions, the law of modernity operates in the world as an abstract force that acts from the outside-in, digging normative corridors through which to channel and dominate the movement of living bodies (even at the cost of undermining, as testified by the current ecological crisis, the world’s very ability for self-reproduction).

In The Ecology of Law Capra and Mattei therefore make the argument that it is time for the production of norms to transform from an extractive to a generative process, that be able to sustain and reproduce life. For this shift to occur, they argue, one must first of all reinstall an ability to think of the production of norms in non-authoritarian terms, but rather as a process that – save for the exception of legal modernity – has always been strung across a variety of centres of authority: indeed, it’s a process that potentially embraces all bodies, as they reciprocally coordinate their collective habitation of space. What has to go, then, is the very understanding of the legal system as an authoritative list of sources of legal production, in favour of an image of the law as the emergent product of a shifting field of social and material forces that combine and re-combine in the forms of common life.

This newfound ability to imagine legal innovation as a possibility distributed across the social fabric affords centrality to the legal category of «customary rights» – meaning collective practices, validated through time and experience – as the original source of all normativity (on this reading, even obedience to state law becomes nothing more than a collectively coordinated behaviour that has its source of legitimacy in the very practice of obedience by actual bodies, regardless of how those bodies may discursively justify that obedience as mere compliance to a separate law-giver). Mattei and Capra take seriously the statement that law has emerged – and can still arise – as «custom», and discern this very process as being at work in the various practices of commoning, i.e. of assembling and tending to old and new commons (by the communities of users and producers they simultaneously catalyse), with rules and conventions to govern shared use.

Commoning as common thread for social innovation in the South?

The notion of commoning captures many experimental initiatives currently underway in the South, which are distinguished by an aspiration to re-claim authorship over the forms that life in common can take. Let us think for example of all those interventions that sit uneasily with the paradigm of volunteer work: these were the focus of the second day of the Forum on the Gift. Indeed, those projects and initiatives appear invigorated by a distinctively civic vision oriented to the care for the commons; because of this, they disclose a profound aspiration to re-draw the very meaning of living together, orchestrating work and entrepreneurship as tools for the collective norming of place.

I want to venture into discussing a specific example, however, which I feel illustrates the point I am trying to make about grassroots norming of space and commoning experiences. What I have in mind is the experiment in collective management underway at the Asilo in Naples. I’m not sure how else to describe what is happening there, other than catalysing a community of user-participants around the processes of cultural production that are made possible by the physical structures of the building formerly known as the «Asilo Filangieri», an ancient palace in the historic urban core of Naples. In an interesting article describing this experience, jurist Giuseppe Micciarelli («Pratiche di commoning nel governo dei beni comuni: il caso dell’ex Asilo Filangieri» in Il Tetto, 2015, iss. 306-307:92-95) singles out a distinctive trait of commoning experiences as exemplified by the community of the Asilo:

[to use] the grammar of the law in unusual ways: not so much for proposing new rights or to assert demands for the authorities to fulfill, but to consolidate, and make replicable, the spaces of autonomy they assert through their struggles.

In other words, the Asilo is not merely the recuperation of an under-used public space. Rather, it expressly envisages itself – and in this sense it sits at the bleeding edge of experimentation in the politics of law and law-making – to ground the power to norm and to manage place at the level of the communities that use of or participate in it (in this case, the building formerly known as «Asilo Filangieri»), and to argue for the legitimacy of such norm production as a source of law in its own right – something that the collective behind the Asilo experiment has tried to call «customary civic use right of a commons».

On this reading, the Asilo is therefore a lucid example of the sort of shift that Mattei and Capra envisage for legal thought. Namely to recuperate an ecological sensitivity at the level of the sources of law, such that the material life of communities can finally be regarded as a legitimate ground for their power to manage – and therefore to «norm» in a general sense – the spaces in which their common life unfolds and is reproduced. In sum, I want to suggest that it is around this core of new opportunities for collective action, as illustrated by the Asilo experience, that the South is in a position to blaze a trail as a laboratory of legal pluralism. That very pluralism that is both a founding characteristic of a true ecology of law, as described by Capra and Mattei, and which is symmetrically stamped out in legal practice, whenever the latter is understood solely as the technical domain, exclusive to a professional élite.