Constitutionalizing the Commons
'The legal theoretician Luigi Ferrajoli has for some time been suggesting the route of actually constitutionalizing the Commons, thus taking them away both from the market and from the threats of exclusive private appropriation and from the decisions of temporary political majorities (as has happened at least in part in some Latin American constitutions, notably Ecuador). Constitutionalization would indeed ensure Commons non-reversible legal protection."
"It is therefore necessary but not sufficient to define and protect an area of Commons seen as a sort of public but non-state area (or common public area), made up of the Commons as a whole, in the sense of shared non-alienable goods.
We also need a more general recognition and a flexible system of legal protection for commoning activities and for the products of collective creativity: the state and institutions must take an active role in supporting commoning and to support the creation of new Commons.
This active role must translate into forms of public-common partnership, where the institutions enable and empower the collective/social peer-creation of common value. Governments could also provide seed funding, incentives and grants for Commons and commoning, just as it currently provides research and development support and assistance to businesses and corporations.
The drafting of one of more Charters of Commons must offer a broad range of forms of protection, which would go for example from the definition of special statutes for the safeguarding of biodiversity or of traditional knowledge to laws defending the collective interests of digital communities. At the same time a series of legal tools aiming to keep the results of collective creation under the control of the collectivity which produced them have been built and invented by the commoners themselves, for example by altering the legal tools which were originally designed to protect private property, redirecting them towards the protection of Commons, as has been the case with GPL and CC licenses, the product of a transformation and a turning onto their head of the logic of laws governing copyright.
The legal recognition of the sphere of Commons must lead to a delegation of authority and power by the state to commons-based institutions. That is to say, the constitution of self-regulating commons-based institutions must be authorized, protected and legally recognised (starting with the recognition of those which already exist(9).), through which commoners can protect, produce and reproduce Commons and common value."