The essay argues for the compatibility between private law and the commons. In order to do so, it proposes an archeology of modern private law, which traces both the emergence of what will be called “modern topology” and the historical transformation of civil law into what we still know as private law. Private law is considered to be a product of modern legal theory which is radically tied with public law. The two are meant to have the very same logical form—individuality—which was the premise for the social relation of capital to be established. The pivot of this legal maneuver—which ended up with the exclusion of the commons from the realm of both private and public law—was the theory of subjective rights. To dismantle this construction, the essay proposes a critique of subjective rights as well as a trans-subjective approach to private law.
Making the Multiple: Toward a Trans-Subjective Private Law
Michele Spanò, trained in both social philosophy and private law, is Associate Professor in Law at the EHESS in Paris. He is interested in the ways in which law deals with collective entities. His researches focus on class action lawsuits and consider, both historically and theoretically, how the logical and practical hegemony of individualism in private law is being reframed and contested through and by the emergence of common or collective actors, interests, goods and rights. He is the author of Azioni collettive. Soggettivazione, governamentalità, neoliberismo (2013); he edited, with Alessandra Quarta, Beni comuni 2.0. Contro-egemonia e nuove istituzioni (2016) and Rispondere alla crisi. Comune, cooperazione sociale e diritto (2017). He edited and translated the works of AIhwa Ong and Yan Thomas. He more recently edited a new edition of Widar Cesarini Sforza, Il diritto dei privati (2018).
Michele Spanò; Making the Multiple: Toward a Trans-Subjective Private Law. South Atlantic Quarterly 1 October 2019; 118 (4): 839–855. doi: https://doi.org/10.1215/00382876-7825648
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