INSTITUTIONAL ANALYZES OF THE COMMONS: THREE SCHOOLS AND

THEIR DIFFERENCES1

Rafael A. F. Zanatta2

*Paper submitted to the 2nd EMES-Polanyi International Seminar, to be held in Paris

on 19th and 20th of May 2016. The first version was written during the summer of 2015
as a dissertation for the International University College of Turin.

Abstract

This essay investigates the meaning of “the commons” in institutional perspective and
critically analyzes the concept of institutions and ethical values that constitute different
theories in the contemporary debate. For clarity of exposition, I organize the
institutional theories of the commons in three schools of thoughts. The first is the
“Indiana School”, formed around the work of political scientist Elinor Ostrom. The
second is the “Turin School”, led by legal school Ugo Mattei in Italy. The third is the
“Harvard School”, best represented by social theorist Yochai Benkler. The theoretical
research aims to answer two question. First, if there is a variation of normative basis for
institutional analysis of the commons in these three schools. The second is if it is
possible to identify different degrees of ethical arguments about the commons in these
theories. I use these “schools of thought” to highlight the main differences concerning
the normative and ethical arguments behind the institutional analysis provided by these
thinkers. My claim is that it is possible to identify degrees of normativity in these
schools based on the concepts of efficiency, social justice and social learning. I also
claim that institutional theories of the commons (the schools of Indiana, Turin and
Harvard) have different ethical visions and that scholars rely, in different ways, on the
ideas of sustainability, anticommodification and autonomy. Finally, I make a clear
distinction between “resource based” and “social based” analysis of the commons and
advocate for an institutional approach focused only on social relations and governance
structures.

Keywords: commons, institutional analysis, social theory, ethics.

1
The first version of this essay was written as a dissertation at the International University College of
Turin, under the supervision of Prof. Talha Syed and Prof. Petar Bojanic. I want to express my gratitude
to Ugo Mattei, Giuseppe Mastruzzo, Saki Bailey, Rodrigo Miguez, Emanuele Ariano, Michele Spanò and
Alessandra Quarta for their lessons and debates about the commons in Turin. I also would like to thank
Daniel Astone and Miguel Said Vieira for comments and critiques.
2
Master of Laws, Economics and Finance at the International University College of Turin (’15). Master
of Science at the University of São Paulo Faculty of Law (’14).

1
Introduction

This essay aims to clarify what it means to study the commons in an institutional
perspective and to investigate different ethical arguments that this kind of analysis
might admit in the contemporary debate of social theory. I do not investigate the
commons as a political movement against corporate powers in a global scale and the
“transformation of every activity and value into a commodity” (Klein, 2001). This is not
a study on political sociology or political economy. It is rather a critical analysis on
theories of institutions. My primary focus is to clarify some key concepts to understand
this debate, to contrast contemporary institutional theories of the commons and to grasp
the ethical values that sustain these theories.

From the outset, I must state that I adopt a precise meaning for “the commons”
which will be contrasted to the literature review conducted in this essay. I conceptualize
commons as social relations and roles over the use of shared resources – material or
immaterial – that generate normativity through language and communication and create
a specific set of shared norms of behavior and a property regime of a different kind.
These relations, mediated by communication, are the constitutive element of
institutions, which can be broadly defined as “formal and informal rules that are
understood and used by a community” (Ostrom & Helles, 2005: 3).

The concept that I use – influenced by Marxian social theory and contemporary
theories of social ontology – contrasts with mainstream “resource-based analysis” (De
Angelis, 2010) of the commons in field of economics and political science, which
focuses on the nature of “common-pool resources” (CPRs), that is, goods that are
difficult to exclude others but with a certain degree of subtracbility, like fisheries and
forests, as extensively studied by Elinor Ostrom and the working group at the Indiana
University during the 1990s. For the purposes of this study, however, commons are not
the resources by themselves3 but they are the social relations that are created between
humans concerning a resource that is open to many people and that might be used for
consumptive or productive means.4

3
Charlotte Hess and Elinor Ostrom wrote that “commons is a general term that refers to a resource shared
by a group of people” (Hess & Ostrom, 2005: 4).
4
There is a certain degree of consensus between contemporary German scholars (e.g. Andreas Exner,
Brigitte Kratzwald, Silke Helfrich and Jörg Haas) that commons is a construct constituted of three main
parts: common resources, institutions and communities (Kip et al., 2015: 12-13). This social-based

2
 By putting social relations in first place the element that is stressed is how
human interaction occurs and how humans, once they are together for a common
purpose, modify each other’s behavior by social norms, the creation of social roles and
the deployment of rules over access and appropriation of a shared thing. This type of
analysis of the commons might be called “institutional analysis” and it will always
involve law and “institutional facts”5: how entitlements and rights over resources – in
other words, “property regimes” (Schlager & Ostrom, 1992) – are created through
language in social relations and maintained by a certain structure of enforcement of
rights, being or not linked to the State.6 Once the reader adopts a non-positivist account
of the law, it becomes easy to perceive that there is no institutional analysis of the
commons without law.

There is a vast literature on the institutions of the commons that compete for
acceptance and validity among scholars, with different concepts, methods and goals.
Some theories are inductive and empirically based. Others are deductive and grounded
on political philosophy. Some are focused on social relations around dilemmas of the
use of natural resources. Others are concerned about the transformations that the
Internet might support regarding human cooperation and intellectual production. My
aim in this essay is to explain the main difference between this institutional literature of
the commons (Ostrom, 1990; Ostrom & Hess, 2006; Benkler, 2006; Benkler, 2010;
Mattei, 2011; Bollier & Mattei, 2014) regarding two aspects:

(i) if there is a normative basis for institutional analysis (in other words,
what is the value behind the existence of institutions of the
commons?);
(ii) and if it is possible to identify different degrees of ethical argument
about the commons in these theories (in other words, is there a hidden
concept of what is a good life in each theory?).

analysis of the commons can be perceived in the classic book Customs in Commom by the historian E. P.
Thompson (1991).
5
“Institutional facts”, in John Searle’s terminology, are facts dependent on human agreement, in contrast
to noninstitutional, or brute facts. Institutional facts require human institutions for their existence. Searle
noted that conscious agents can create social facts by the assignment of functions to objects, which are
assigned relative to the interests of users and observers (Searle, 1995).
6
Commons, therefore, are social creations. They are not given by nature. They are part of the
“construction of social reality”, as philosopher John Searle put it. Or to use Margaret Gilbert’s theory –
another philosopher in the field of social ontology –, commons are only possible by joint commitments
made by individuals that become plural subjects by acts of communication and agreement (Gilbert,
1992).

3
 My main claim is that contemporary institutional analysis of the commons
admits three different ethical arguments, meaning that they have “different accounts of
our judgment about conduct, is so far as these estimates it from the standpoint of right
or wrong, good or bad” (Dewey, 1909: 1). In other words, theories on the commons
have underlying principles of what is a good life and what we should promote
collectively. By reviewing the contemporary debate on the commons, I will show that it
is better to separate these theories in three different schools of thought: the “Indiana
School”, led by Elinor Ostrom; the “Turin School”, led by Ugo Mattei; and the
“Harvard School”, led by Yochai Benkler – for clarity of exposition.

I use these “schools of thought” just to highlight the main differences concerning
the normative and ethical arguments behind the institutional analysis provided by these
thinkers. I do not aim to provide a definitive taxonomy on the literature of the commons
and I do not cover all the literature in this field. However, I believe that it is better to
understand the differences in this debate and to pay close attention on the hidden values
that are not easily perceived in their texts and theories. I think that this paper might
contribute to this intellectual goal.

I develop my argument in two chapters. In the first one, I explain the importance
of the work of Elinor Ostrom and detail how she created the “Institutional Analysis and
Development framework” (IAD) as a comparative method of institutional analysis. I
claim that Ostrom has a strong normative argument for effectiveness of institutions and
sustainability of resources. Sustainability is the main ethical argument of the “Indiana
School”. Later on, I explain why many Italian critical thinkers – many of them from law
schools – opposed to these principles and forged a new theory on the commons. As I
show in this chapter, the Italian literature is much more concerned with social justice,
enclosures and the “commodification”7 of natural and human-created resources. They
rely on Karl Polanyi to push an anti-commodification agenda which is itself an ethical
argument for the “Turin School”.

In the second chapter, I shift the focus off the Italian debate and claim that there
is a third important school of thought in the field of commons and institutional analysis,
which is the work of social theorist Yochai Benkler. I focus on Benkler’s theory of

7
For an analysis of the “types of commoditication” (original appropriation and creation of new markets
by property regimes) and the meaning of this concept in the work of Karl Marx and Karl Polanyi, see
Paterson (2014).

4
commons-based production to highlight his ideas on cooperation in a networked society
and the value of autonomy for individuals. My claim is that Benkler is a representative
of an approach that recognizes social learning (as a result of productive cooperation)
and autonomy as conditions for good life. This is the main feature of the “Harvard
School” on the commons.

I am aware that sustainability, anti-commodification and autonomy are all

ethical arguments that are somehow present in each of the schools that I present in this
paper. However, this does not block us to understand the salience of one specific ethical
argument in the commons debate. In fact, this might even help us, considering that they
are strictly connected to practical reason and serve as guidance for unsolved problems in
life, as John Dewey observed more than a century ago.8 In other words, to see clearly
the ethical values of these schools is also an opportunity for to ask ourselves deep
questions about human nature and social life and how we should frame our discussion
about the commons.

8
“(…) if we can discover ethical principles these ought to give some guidance for the unsolved problems
of life which continually present themselves for decision” (Dewey & Tufts, 1909: 4).

5
1. The “commons debate” after Elinor Ostrom: resources, relations and
institutions

In this first part, I explain the importance of Elinor Ostrom and the institutional
analysis developed by the Indiana School, contrasting it to the Italian approach on beni
comuni – what I call the Turin School. In this part, I identify the normative and ethical
arguments behind these two theoretical projects.

I will not review all the literature that deals with Ostrom’s work but will focus
on the main features of her investigation on how to govern the commons and the critical
analysis of her theory produced by Italian scholars. As it will be seen, the Italian
literature is much less empirical and focused on the legal architecture of the commons
as a strategy to move beyond the market and the State as the main organizers of
economic life.

A. Imploding the “Tragedy of the Commons”: the main findings of Elinor Ostrom and
the “Indiana School”

Elinor Ostrom was already world-famous in 2009 when she received the Nobel
Prize in the field of economics.9 Her main contribution to economic theory was to
demonstrate that common-pool resources are not always doomed to tragedy and that
communities are able to organize themselves and make decisions and rules10 in order to
sustain a resource that is commonly used without relying on private property or
extensive public regulation by the State. This was a major achievement in social
science, considering the influence of the paper The Tragedy of the Commons written by
biologist Garrett Hardin and published by Science in 1968, which prescribed two policy
solutions (private property or public regulation) to the problem of natural resources that
were “open to all” (Hardin, 1968).

The work produced by Elinor Ostrom in the annual “Workshop in Political

Theory and Policy Analysis” at the Indiana University during the 1980s aimed to
implode Hardin’s arguments. Ostrom recognized that the problem of exhaustion of

9
See http://www.nobelprize.org/nobel_prizes/economic-sciences/laureates/2009/ostrom-facts.html
10
By rules Ostrom meant “shared understandings among those involved that refer to enforced
prescriptions about what actions (or states of the world) are required, prohibited, or permitted” (Ostrom,
2011: 17).

6
natural resources was real. When all participants of a community follow a strategy of
increased consumption, she said, they can “bring about a deterioration or eventual
destruction of the capacity of the resource to continue production of beneficial use-
units” (Ostrom, 1985: 1). The problem, however, was that the policy proposals intended
to avert the tragedy of the commons, as prescribed by Hardin and others, were too
simplistic. For Ostrom, the economic debate on cooperation regarding shared resources
was flawed in light of real-life experiences.

By relying on empirical research produced by her and by many collaborators,

Ostrom argued, thirty years ago, that many communities achieved “regulation of
delicately balanced forest and grazing commons utilizing institutional arrangements that
are neither private ownership nor control by a central authority” (Ostrom, 1985: 5).
When dealing with the problems of a shared natural resource – a common-pool resource
(CPR)11 –, communities were able to create different intergenerational transfer rules and
“rules for controlling entry into and exit from the community sharing the commons”
(Ostrom, 1985: 6). In order words, communities could exercise real choice in the design
of their institutions instead of following a “one size fits all approach” provided by
private property lawmakers and government regulators.

Ostrom’s research contested many premises set forth in the work of Garrett
Hardin and scholars dedicated to the study of cooperation and the problems of CPRs.
Her work debunked many arguments of his famous essay. For instance, in Hardin’s
theoretical model, individuals are rational beings which are isolated and do not
communicate (Hardin, 1968). Ostrom denied this point of departure and provided
concrete historical examples, in Switzerland and Japan (Ostrom, 1985: 10-19), that
show the cultural bounds that exist inside one community. Individuals do think, but they
think inside a social environment and follow social norms derived from relationships
and trust-building.

Hardin also provided the abstract example of the “open pasture” that is
accessible to all, in which there is no exclusion and no property rules backed by the
state. For him, the “open pasture” example was a place of “no law”. Ostrom also

11
In general terms, goods can be understood in four broad categories, depending on how difficult is
exclusion and what is the degree of subtracbility (high or low). The difference between a public good and
a common-pool resource is the degree of subtracbility (if the use of one person's use reduce the
availablity of the good for others), which is higher in common-pool resources (Ostrom et al., 1994: 7).

7
challenged the idea of “open access” and the argument of lack of rules. For her, when
communities deal with social dilemmas regarding a common-pool resource they are
capable of creating their own institutional arrangement “that enable them to keep total
use within the limits of sustainable yield” (Ostrom, 1985: 22). Concrete and historical
experiences of communities dealing with pastures and forests show, according to
Ostrom, a detailed set of rules regarding rights of access, exclusion of foreigners, limits
of use of the resource, monitoring of cooperative behaviors and conflict resolution.
Experience proved that Hardin’s abstract model was wrong. History shows that there is
law for commoners but of a different kind. As detailed by E.P. Thompson, “commoners
themselves were not without commonsense; over time and over space the users of
commons have developed a rich variety of institutions and community sanctions which
have affected restraints and stints upon use” (Thompson, 1991: 107).

Finally, Elinor Ostrom debunked one last premise used by Hardin in the tragedy
of the commons: that individuals have non-continuum relations and they only concern
about personal advantage. Like E. P. Thompson, Ostrom argued that Hardin’s model
was ahistorical and utilized “extreme assumptions rather than general theories”
(Ostrom, 1990: 183). In fact, most of the communities that dealt with common-pool
resources (CPR) studied by Ostrom were engaged in long-term relationships and
overcame Hardin’s assumptions (individuals without the capacity to communicate
acting independently with little mutual trust). Communication12 is a key factor to self-
organization aimed at social benefits and avoidance of harm. In Ostrom’s words, “when
individuals have lived in such situations for a substantial time and have developed
shared norms and patterns of reciprocity, they possess social capital with which they
can build institutional arrangements for resolving CPR dilemmas” (Ostrom, 1990: 184).

The findings produced by the “Indiana Workshop”13 were further explored in

Ostrom’s most cited work, entitled Governing the Commons, published in 1990. As
explained by Ostrom, this book had three basic goals: to provide a critique of policy
analysis applied to natural resources, to present empirical examples of efforts to govern
12
I follow John Dewey’s idea that “the heart of language is not ‘expression’ of something antecedent,
much less expression of antecedent thought; it is communication, the establishment of cooperation in an
activity in which there are partners, and in which the activity of each is modified and regulated by
partnership” (Dewey, 1929: 179).
13
Ostrom’s team was not the only one producing empirical research on institutions of the commons.
During the 1980s, English historian E. P. Thompson was involved with many researchers that were
concerned about the life of the commoners (“common people” or “gentry”) before the industrial
revolution. See Aylmer (1980), Rabb (1981), Neeson (1984), Birrel (1987).

8
and manage natural resources, and to develop intellectual tools to understand the
capabilities and limitations of self-governing institutions for regulating many types of
resources (Ostrom, 1990: 2). Ostrom’s main interest was to “identify variables that must
be included in any effort to explain and predict when appropriators using smaller-scale
common-pool resources are more likely to self-organize and effectively govern their
own resources” (Ostrom, 1990: 183).14

Ostrom’s main findings were consolidated in a new framework for institutional

analysis. This theoretical framework was based on field studies about social relations
upon shared physical resources. Ostrom claimed that it was possible to “describe a
series of design principles that characterize the robust institutions [created by
communities] and to identify the variables most likely to be associated with successful
institutional change” (Ostrom et al., 1994: 5).15 By design principles Ostrom meant
characteristics that help to account for the success of these institutions in sustaining
physical works and gaining compliance of users to the rules created by the community
(Ostrom, 1999: 75). These principles, as presented by Ostrom (1990), would be:

I. Clearly defined boundaries (closing it to “outsiders”);

II. Proportional equivalence between benefits and costs (those who receive
the benefits must also pay for the costs);
III. Collective-choice arrangements (those affected by operational rules must
be allowed to modify these rules);
IV. Monitoring (some users audit specific behaviors);
V. Graduated sanctions (those that violate operational rules receive
sanctions from users or officials);
VI. Conflict resolution mechanisms (users have access to low-cost and local
arenas for conflict resolution);
VII. Minimal recognition of rights (rights of users in the community is
recognized by external governmental authorities);

14
Ostrom was concerned with specific “CPR situations” generated by small-scale CPRs, “located within
one country” and with “the number of individuals affected” from “50 to 15.000 persons who are heavily
dependent on the CPR for economic returns” (Ostrom, 1990: 26).
15
These principles were not models for institutional arrangements. Ostrom was very conscious that “rules
to enhance the supply and use of any particular physical system must be devised, tried, modified, and
tried again in an ongoing process of institutional artisanship” (Ostrom, 1999: 75).

9
 VIII. Nested enterprises (appropriation, provision, monitoring, enforcement,
conflict resolution and governance activities are organized in multiple
layers);

The terminology used by Ostrom is tricky. She uses the expression commons as
physical shared resources – or, more specifically, common-pool resources. It is clear
that Ostrom pays a lot of attention to social relations and institutions. In fact, the process
of “getting the institutions right” for small communities is the core of her research.
However, Ostrom still uses a resource-based analysis of the commons. She does not
refer to commons as social relations and roles over the uses of shared resources – not, at
least, in a direct way. The institutions of the commons are a separate object in analytical
terms and more related to rules.

Ostrom provided another theoretical framework for the study of rules inside
groups (“rules in use”). She claimed that most researchers payed attention only to static
systems in which the rules do not change. In other words, many scholars studied
operational rules (entitlements over the use of one resource) in fixed settings. However,
technology and rules are subject to change over time: “the rules affecting operational
choice are made within a set of collective-choice rules that are themselves made within
a set of constitutional-choice rules” (Ostrom, 1990: 50).

For Ostrom, all rules are “nested in another set of rules that define how the first
set of rules can be changed” (Ostrom, 1990: 51). In a close approximation to legal
theory and the classic division between primary rules (rules of conduct) and secondary
rules (rules on other rules),16 Ostrom argued that three different level of analysis could
be deployed to understand the rules created by communities. Operational rules,
according to Ostrom, affect day-to-day decisions made by the appropriators “concerning
when, where, and how to withdraw resource units, who should monitor the actions of
others and how, what information must be exchanged or withheld, and what rewards or
sanctions will be assigned to different combinations of actions and outcomes” (Ostrom,
1990: 52). Collective-choice rules, on the other hand, are rules used by appropriators
and officials to make policies about how a common-pool resource should be managed

16
It seems that Ostrom was not familiar with the work of Norberto Bobbio and Herbert Hart, two of the
main figures of the 20st century’s legal theory. I could not find any reference to Bobbio or Hart and the
distinction between primary and secondary rules. Her theory of rules is derived from the institutionalist
John R. Commons (1862-1945).

10
(the normative goal). Finally, constitutional-choice rules are those that determine who is
eligible and who can change the collective-choice rules (Ostrom, 1990: 52).

The work done by the scholars in the “Indiana Workshop” were tremendously
influenced by Ostrom’s ideas, her theory of rules (operational, collective-choice and
constitutional) and the design principles for sustainable common-pool resources – what
became known as the “Institutional Analysis and Development framework” (IAD).17
During the 2000s, Ostrom advanced her agenda and set forth an institutional framework
that could “identify the major types of structural variables that are present to some
extent in all institutional arrangements, but whose values differ from one type of
institutional arrangement to another” (Ostrom, 2011: 9). This multi-tier conceptual map
is based on some key concepts, like action situations (social spaces where individuals
interact, exchange goods and services, solve problems and dominate one another) and
evaluation of outcomes. Let me focus on action situations first. The action situation,
says Ostrom, is “an analytic concept that enables an analyst to isolate the immediate
structure affecting a process of interest to the analyst for the purpose of explaining
regularities in human actions and results” (Ostrom, 2011: 11). To understand this
structure, Ostrom proposes a set of questions concerning the number of individuals, the
positions that exist, the allowable actions, the potential outcomes, the level of control
over choice, the information available and the costs and benefits of actions and
outcomes.

The evaluation of outcomes is the strong normative process proposed by Ostrom

to evaluate institutional arrangements, especially those of CPRs (Ostrom, 2011: 13-14).
According to Elinor Ostrom, institutional arrangements should achieve economic
efficiency (magnitude of net benefits associated with an allocation of resources), fiscal
equivalence (those who benefit from a service should bear the burden of financing it),
redistributional equity (provision of facilities that benefit particularly needy groups),
accountability (officials should be accountable to users/citizens concerning the
development and use of public facilities and natural resources), conformance to values
of local actors and sustainability.

17
Ostrom made a clear distinction between frameworks and models. Frameworks identify elements and
general relationships among these elements that one needs to consider for institutional analysis. They
provide a general set of variables that can be used to analyze institutional arrangements. Models are used
for precise assumptions about a limited set of variables and parameters to derive precise predictions about
the results of combining these variables (Ostrom, 2011: 4-5).

11
 I will return, later on, to the normative argument of economic efficiency and the
ethical argument of sustainability (my intention is to compare her normative argument
with those produced by other scholars in the field of the commons). The whole agenda
developed by the “Indiana School” on the commons is deeply rooted in these two
values. Social relations and institutional arrangements developed upon dilemmas of
common-pool resources must be measured on the effectiveness of the institutions, the
economic efficiency of the arrangement and the sustainability that it promotes.

In the last text published before her death, entitled Green from the Grassroots,
Elinor Ostrom made clear that sustainability “must form the bedrock of national
economies and constitute the fabric of our societies” and that our goal should be “to
build sustainability into the DNA of our globally interconnected society” (Ostrom,
2012). But is that so? What if there are others ethical arguments for the commons?

B. The Fight for Social Justice and Anti-Commodification: beni comuni and the “Turin
School”

Besides the empirically informed theory developed by Elinor Ostrom, a second

major agenda on the debate of the commons is the one defended by Italian intellectuals
around the concept of beni comuni.18 This agenda is not so much focused on empirical
studies of collective action but is rather grounded on a strong set of theories against
privatization and the commodification of all spheres of life, with deep roots on Karl
Polanyi and the Gramscian tradition built around the Partito Comunista Italiano (1921-
1991), and the claims for solidarity and social justice in the context of dismantlement of
the welfare state in Europe (Rotodà, 2013).

In the last fifteen years, many Italian intellectuals have written about the
protection of the “commons” – which they call beni comuni – and the need for new
institutional arrangements to overcome a purely market-based approach based on
private property and a traditional socialist approach based on public property of goods.
In this effort to develop a new conceptual scheme for the commons, for instance, one

18
For a general overview in Italian, see the explanation by Stefano Rodotà:
http://www.filosofia.rai.it/articoli/rodot%C3%A0-i-beni-comuni/19364/default.aspx

12
can locate the works of sociologists Carlo Donodo (2003) and Franco Cassano (2004).19
This idea is also framed by the economist Giovanna Ricoveri, who believes that the
commons have an alternative working model that is different from the one that govern
capitalistic markets because of “the specificity of time and place, the collective property
that is neither public nor private, the eco-compatible use of the resources, the
interpersonal solidarity between the components of the community, the direct
participation of the members in the choices that they must make, the cooperation or
horizontal competition, and the self-government of the community” (Ricoveri, 2009:
91). This effort to overcome the binary division between public and private is also
perceived in Antonio Negri’s ethical project of a “democracy of the multitude” that is
possible “because we all share and participate in the common” (Negri & Hardt, 2009:
viii).20

Legal scholars also engaged in this agenda in the last few years, more
specifically Ugo Mattei, Stefano Rodotà and others involved with the creation of the
International University College of Turin – an academic think tank dedicated to critical
approaches on comparative law, economics and finance. This agenda generated by
critical legal thinkers has some fundamental differences with the institutional
perspective created by Elinor Ostrom and the Indiana School. The “Turin School”21 is
deeply connected to a “praxis of struggle” (Mattei, 2013: 367) based on occupations,
protests against privatization and new social movements that emerged after the financial
crisis of 2008 (Mattei, 2011). This school denies the separation between the production
of knowledge and political activity and advocates for a conscious critique of neoliberal
capitalism inside the university. It avoids claims of impartiality and objectivity.

There are many elements in the Italian theory of the commons that make it
different from Ostrom’s work. The first one, as advanced by Ugo Mattei, is the denial of

19
Cassano argued that the protection of the commons would require “a good dose of imagination, the
availability to think the world (…) in the point of view of its transformation” (Cassano, 2004: 14).
Cassano’s idea of the homo civicus is a defense of associative work in order to protect and produce the
commons. It is a “grammar for civil life”. In his words, “the homo civicus is neither a devoted citizen nor
a gleeful consumer, but the man capable of self-government” (Cassano, 2004: 29).
20
Negri & Hardt use the concept of the common for the common wealth of the material world (air, water,
fruits of the soil, etc) and the “results of social production that are necessary for social interaction and
further production, such as knowledges, languages, codes, information, affects, and so forth” (Negri &
Hardt, 2009: viii). They deny a separation between men and nature and focus on practices of interaction,
care, and cohabitation.
21
I use the term “Turin School” to connect the many scholars around the “beni comuni movement” in
Italy and those involved with the legal debate on the commons as initiated by Ugo Mattei.

13
the “positivistic distinction between the domain of facts and that of values on which
legal positivism stands” (Mattei, 2014: 13). Mattei claims that economic “positive
analysis” is already built on normative values and hidden premises about the centrality
of the individual. Institutional analysis, according to Mattei, must be based on a “new
common sense of the commons” that takes ecology seriously.22 This demands a radical
change of perception about the distinction between men and nature and the Newtonian
vision about how nature and society functions like a machine (Mattei, 2014: 14).

The second difference is the claim about fundamental rights and access to
fundamental resources made by these Italian legal scholars. This post-positivistic thesis
about basic human rights is clear in the definition of beni comuni made by Stefano
Rodotà in 2008, in which commons “are goods, which provide utilities essential to the
satisfaction of fundamental rights of the person” (Mattei, 2013: 369). This makes
perfect sense when one considers the political fight against the privatization of water in
2009. The strategy deployed by these scholars was to create a new doctrine of property
“distinct from both private and public ownership and deserving of special protection at
the constitutional level” (Mattei, 2013: idem). This social-based analysis of property
was already employed by Rodotà in the last four decades. The effort made by the
commission was to create a new form of property, protected by the Constitution, aimed
at essential utilities. The normative value behind this thesis is that every citizen has the
right to water, energy, food and goods that are essential to the satisfaction of
fundamental rights, like “knowledge in network” – a special type of commons for
Rodotà (2014). Therefore, the “Turin School” already presupposes the acceptance of
theories of fundamental rights that became consolidated in the European Charter of
Fundamental Rights of 2000, which became legally binding on the European Union
institutions and national governments because of the Treaty of Lisbon of 2009.23

This conception of fundamental rights connects to the third difference between

the Turin School and the Indiana School, which is the normative argument about social
justice. As seen before, Elinor Ostrom was interested in the positive analysis of how
small communities faced dilemmas regarding the use of common-pool resources and
created de facto institutions for solving these dilemmas. Stefano Rodotà, Ugo Mattei

22
It is interesting to notice that Ugo Mattei recently partnered up with Fritjot Capra – a famous ecological
theorist in the United States – to write about “the ecology of law” (Capra & Mattei, 2015).
23
See http://ec.europa.eu/justice/fundamental-rights/charter/index_en.htm

14
and other members of the Turin School, on the other hand, are concerned with the
dismantlement of the welfare state and how citizens, inside political communities with a
clear legal architecture, have a claim on essential goods like food, water and
information (Mattei, 2011). Behind this claim lies a mode of reasoning. They argue that
privatization and market forces might enhance inequalities in the sense that
commodified water and commodified information will only be accessible for those who
can pay. To develop new property regimes for the commons is a strategy to guarantee
the equal right of access to these essential resources for these citizens. It is a
constitutional framework for a socialist society that avoids relying on the state and on
the market (Mattei, 2011: x). Or, to use Mattei’s word, “being outside of the
State/Market duopoly, the commons, as an institutional framework, presents an
alternative legal paradigm, providing for more equitable distribution of resources”
(Mattei, 2012).

Finally, the fourth difference in the “commons discourse” of the Turin School is
the direct critique of neoliberalism and the “subverted balance of power, in which
privileged corporate power has relentlessly grown much stronger than the public sector”
(Mattei, 2014: 20). Ugo Mattei claims that Elinor Ostrom forgot the “power dimension”
in her analysis and only studied “idealized village communities” without revolutionary
roots (Mattei, 2014: idem). Mattei also criticize sociologists who believe in the homo
civicus by saying that corporations are always homo oeconomicus (and they often
ignored in this debate). He even agrees that Garrett Hardin was correct if one considers
the role of corporations as predatory legal persons. For the Turin School, the
positivistic analysis of the Indiana School transforms the commons into “a tranquilising,
pacified paradigm, building the illusion that someone else (out there in academic
departments, think tanks, international development agencies, parliaments, etc) is caring
for future generations, while the current generation should only continue to consume”
(Mattei, 2014: 21).

It is no surprising to see that, for Ugo Mattei (2011: xiii), the commons are not
only about having (building institutions for common-pool resources which are “owned”
by the community), but they are also about being (behaving like a commoner, fighting
against privatization and restoring the cooperative behavior that is constantly attacked
by individualism, neoliberalism and the fetishism on private property). It is a strategy to
act politically, to protect “fundamental rights” and to challenge current narratives about

15
property rights and economic development. This political element makes the
institutional analysis that they promote trickier. Sometimes it is difficult to see if there is
a distinction between commons as a political movement and commons as institutional
analysis.24 Furthermore, it seems that the commons is seeing, at the same time, as a
thing (or resource) and as a behavior (or institution) – something that might confuse the
scholars trained in Ostrom's framework. 25

The Turin School promotes not only a politicization of the scholarship of

commons but also, in a broader sense, a politicization of everyday life (Banfi, 2012).
Behind this theory lies also an ethical project: it is necessary to struggle and to avoid the
commodification of all spheres of life (Klein, 2001).26 This form of ethics – also
developed by Margaret Jane Radin in her theory of “market-inalienable” things (Radin,
1987) – is deeply connected to Karl Marx’s ideas about commodification as an inferior
form of living. There is, therefore, a vision of what a good life is and what should be
pursued. For Karl Marx, as noticed by Margaret Radin, the production and selling of
commodities is not freedom but a form of fetishism: “market rhetoric, the rhetoric of
alienability of all goods, is also the rhetoric of alienation of ourselves from what we can
be as persons” (Radin, 1987: 177). The difference between the Turin School and
Radin’s theory, however, is that anticommodification should be argued not only for
personal rights that are not fungible. We should also avoid the “market rhetoric” for
common property, common-pool resources and public goods. This would be a form of
alienation of us and the future generations.

It is clear that the Turin School clashes with the Indiana School in many fronts,
despite the fact that both conceptualize “commons” as resources and institutions at the
same time.27 While Ostrom is concerned about the effectiveness of institutions for

24
As already affirmed, it seems that the Turin School denies claims on the objectivity of social science
and the separation between science and politics, as classically posed by Max Weber in 1917.
25
Maria Vanni, in a paper presented at the Workshop in Political Theory and Policy Analysis, claims that
Mattei provides a very poor reading of Ostrom's work for political reasons. According to Vanni, “Mattei
never introduces nor suggests a clear definition of common goods”. She also claims that “Mattei doesn't
take time to discuss the differences between the various concepts on the plate, nor to specify what the
claims made by the authors he mentions are, and where the boundary between their claims and his stays”
(Vanni, 2014: 8).
26
By claiming the commons as a new category of fundamental rights that demands a new legal
architecture (Saki, 2014), they want to reject the privatization of the water, genes, codes and information
created online.
27
I believe that this lack of analytical separation is one of the reasons that make the commons debate so
abstract for students. Scholars still think that “commons can refer to anything from resources to the areas
where these are found, or the collective socials systems governing these” (Bosselmann, 2015). Maybe it

16
small-scale communities, Mattei is worried about social justice and the struggle against
privatization in urban spaces. While the Indiana School has a strong ethical argument on
sustainability, the Turin School relies on a Marxian/Polanyian ethical argument about
anticommodification. They are both concerned about the autonomy of communities and
ecology, but the degree of strength of the ethical argument is different.

Are they the only competing theories? As I will show in the next chapter, this is
not the case. Scholars focused on Internet studies have also produced a third mode of
thinking about the commons as institutional spaces. This school also has a different
ethical argument about the commons.

2. The Institutional Analyses of the Commons Reconsidered: understanding the

differences

As seen in the first part, Ostrom’s institutional analysis of the commons has been
highly influential and gave birth to critical discourses on the commons as an alternative
paradigm for societies concerned with distributive justice and the protection of rights to
fundamental resources. Sustainability and social justice are two dominant ethical values
of these theories.

In this second part, I will expand my analysis having in mind two goals. The first
is to explain the concept of commons according to Yochai Benkler and his special
concern on modes of production in the networked information society – what I call the
Harvard School on the commons. The final goal is to explain why Benkler’s theory has
different ethical values from Ostrom and Mattei and how these values are intertwined
and not clearly seen.

A. Commons-based Production, Autonomy and Networks: Benkler and the “Harvard

School”

would be clearer to think of the commons as institutional facts and not as brute facts (non-institutional),
like the existence of an “open resource”. As the product of social relations mediated by language, the
commons involve the attribution of functions and performances. Quoting John Searle, we are talking
about “the capacity of conscious agents to create social facts” by “the assignment of functions to objects
and to other phenomena” (Searle, 1995).

17
 The United States is the country that created the Internet as a military project for
secure communication in the context of the Cold War (Castells, 1999). It is not
surprising to see that the infrastructure, the governance architecture and the research on
the impact of the Internet on society are all strongly based in the U.S. These scholars are
concerned with the deep question of how the Internet changes social relations and what
makes this information society (or network society) different from the industrial society
of the early 20th century.

A peculiar feature of the American scholarship on the Internet is the engagement

of legal thinkers in an interdisciplinary perspective, moving beyond the juristic debate
on legal concepts and the definition of liability regimes for Internet users. After the rise
of the “cyberlaw ” field with Lawence Lessig and his proposal of the code as a mode of
regulation (Lessig, 1999), other scholars began to study new forms of social behavior
online, the coordination of human activity in networks and the way intellectual work
was conducted without the hierarchies of corporations and governments.

In the early 2000s, Yochai Benkler – a former Harvard student and a young
professor at the New York University at that time – began a deep investigation about
software development, peer-to-peer production and the commons. Studying the case of
Linux, Apache server and other free software creations, Benkler claimed that peer
production outperformed market-based production in some information production
activities (Benkler, 2002: 369). The experience of Linux (the Penguin) led Benkler to
contest traditional concepts set by Cosean economics like the traditional division
between market contracts and rigid hierarchies as fundamental modes of organization
for productive activities.28

Why Linux, Apache and Wikipedia worked even without hierarchy, traditional
management forms and private property rights? For Yochai Benkler, these open
intellectual resources should be explained by a new theoretical framework. For peer-to-
peer production, modularity (granularity of components) is the key-explanation, along
with the difficult cost of integration (users are all connected but geographically distant

28
“Cosean economics” is a reference to Ronald H. Coase, the main scholar in the field of institutional
economics and the thinker that gave birth to “law and economics” during the 1960s in Chicago. It is
important to reaffirm that Coase does not claim that market contracts and rigid hierarchies are the only
modes of organization for productive activities. They are fundamental modes in analytical terms. In other
words, firms are not “purely organized” in one of these modes in real life. They operate with a degree of
bureaucratization and hierarchy, but also rely on contracts and relations that can reduce uncertainty and
transaction costs.

18
from each other and without a formal organizational structure). In peer-to-peer
production, all users can contribute by solving coding tasks that will improve the
platform or the software. These codes are the product of human labor and they are
shared with all the community.29 All users can access this intellectual resource, use it
and create upon it. For Benkler, this “networked information economy makes it possible
for nonmarket and decentralized models of production to increase their presence
alongside the more traditional models, causing some displacement, but increasing the
diversity of ways of organizing production rather than replacing one with the other”
(Benkler, 2003: 1244).

Benkler created the concept of commons-based production to explain this social

behavior. For Benkler, this type of production is something like a collective effort of
individuals contributing towards a common goal in a more-or-less informal and loosely
structured way: “no single entity owns the product or manages its directions; instead, it
emerges from the collaboration of groups of developers, ranging from a few individuals
up to many thousands” (Benkler & Nissembaum, 2006: 395). For Benkler, this mode of
production in networks – which generated immaterial goods by human labor without the
enclosures of traditional intellectual property and without the exclusion of those who
want to participate in coding projects –, also strengthens political values like
democracy, individual freedom and social justice (Benkler, 2003: 1245).

It is interesting to notice how Benkler uses the concept of “commons” in his

writings. In a paper entitled The Political Economy of the Commons, written before his
famous book The Wealth of the Networks, Benkler wrote that “commons are
institutional spaces in which we can practice a particular type of freedom – freedom
from the constraints (…) to functional markets” (Benkler, 2003: 6). In this text, Benkler
always contrast commons with property law.30 Property law is a precondition for
markets because they determine what resource each of us has when we come into
relations with others. Choices are constrained by these arrangements. Commons, for
him, are “a particular type of institutional arrangement for governing the use and
disposition of resources” in which “no single person has exclusive control over the use
and disposition of any particular resource” (Benkler, 2003a: idem). The resources can be

29
For Lessig (1999), the code is also a form of regulation with features that resemble the impact of
architecture on human behavior, dictating what we can and cannot do in the digital space.
30
It seems that Benkler presupposes only private property and not “common-property regimes” (Schlager
& Ostrom, 1992).

19
used by anyone inside a group, under loose and broad agreements or articulated formal
rules that are enforced.

For Benkler, institutional arrangements should be seen as a spectrum in which

commons and property are polarized (Benkler, 2006: 60). The reason that might explain
this is that Benkler focuses only on information, culture and knowledge – public goods
in pure economic terms. When Benkler analyses the work of Elinor Ostrom, he claims
that she only studied cases in which closed communities dealt with limited-access
commons like fisheries and forests. For him, the examples studied by Ostrom were not
universal commons (for everyone), because the communities could exclude external
members and the common property regime only applied for the group that created it
(Benkler, 2003a: 7). The community had exclusive control over the resource. A true
commons, for Benkler, cannot be based on exclusive control, even if there is a common
property regime in which the resource is open for the members of the community
(Benkler, 2006: 61).

It is debatable if Benkler’s concept of the commons is excessively restrictive and

if his concept of property is too based on the right of exclusion in an individualistic
perspective.31 The adoption of a broader definition of property, like the one used by Ugo
Mattei,32 would make us think that the institutional arrangement for the use of resources
in a non-excludable way, as Benkler puts it, is a form of property law because it
involves regulation and socially-created rules of behavior.33 Furthermore, it seems
inconceivable for Benkler to think of property regimes in which the decision of “what to
do, and with whom” (Benkler, 2006: 61) is made collectively and through democratic
deliberation (Di Robilant, 2014). I am not able to advance this discussion right now, but
I want to stress that scholars like Yochai Benkler and Lawrence Lessig – two

31
Carol M. Rose wrote a brilliant essay on the axiom of “exclusive dominion” set up by William
Blackstone (1723-1780) and how the scholarship of property sometimes misunderstands the anxieties and
problems of this metaphor: “people only need property because there are other people who might contest
among property owners and would-be interlopers. But property regimes quickly fall apart when people do
not understand, respect, and tolerate the property claims of others. In its own way, the trope of exclusive
dominion can encourage respect for the claims of others. But at the same time, if the trope of exclusivity
does any major disservice, it is to overstate the case, concealing the interactive character of property and
giving an inappropriately individualistic patina to this most profoundly sociable of human institutions”
(Rose, 1999: 632).
32
According to Mattei, “regulation over scarce resources, as the product of the relationship between
individual powers and legal restrictions, defines the meaning of property law” (Mattei, 2000: 1).
33
The difference might be that, for Benkler, property law is the set of legal structures created by the state
to grant individuals rights and remedies.

20
representatives of what I call the “Harvard school” – have a normative claim behind
their specific definition of the commons.34

If Lessig’s claim lies on innovation and the capacity to create culture in America
(Lessig, 2004), Benkler’s argument lies on social learning and individual freedom (what
he calls autonomy). He argues that the commons creates an “environment in which
individuals and groups can produce information and culture for their own sake”
(Benkler, 2003a: 9). His idea to build a “core common infrastructure” (open physical
layer for open wireless networks, open logical layer facilitated by protocols and
standards, open content layer with “copyleft”35 and open source licensing) rests in a
belief that it is possible to move away from a society of passive consumers buying what
a small number of commercial producers are selling. For Benkler, the commons allow
us to “develop into society in which all can speak to all, and in which anyone can
become an active participant in political, social, and cultural discourse” (Benkler,
2003a: 10).

Commons-based production, which are non-hierarchical and distributed in

networks, are suited for a society that wants to expand autonomy for individuals. For
Benkler, nonmarket production and the commons enhance individual freedom and
autonomy by allowing people to know better the components of one specific creation
(not protected and blocked by private property rights or intellectual property) and also
by expanding the “elements of autonomous choice into domains previously more
regimented by the decisions of firm managers in the market” (Benkler, 2003: 1268).36
Finally, Benkler believes that the “user” – an individual who is sometimes consumer,
sometimes producer, and who is an engaged participant in a network – has more
autonomy in the sense that the users “can have a greater autonomy in self-defining their
productive activity and in making their own consumption goods” (Benkler, 2003: 1269).

Benkler’s defense of autonomy in peer production also connects to ideas

developed by Lawrence Lessig and Internet activists like Aaron Swartz (1986-2013).

34
I did not focus on Lawrence Lessig but it is important to say that he also develops an argument for
cultural commons in the sense that they reinforce American values of freedom and liberty. The whole
project of “creative commons” is based on a normative argument of creation, freedom to reuse cultural
materials and share, and open innovation based on intellectual commons as American values. See Lessig
(2002).
35
http://www.gnu.org/licenses/copyleft.en.html
36
Social learning, in this perspective, is a product of collaboration and productive cooperation. People
learn how to make things and share this knowledge.

21
For them, in a liberal and Deweyan perspective, the value of collaboration and co-
creation lies in the complex mixture between social learning and individual realization.
These are all social activities and they strengthen communities dedicated to the same
goal. But, at the same time, they are also precious for individuals that engage in
meaningful activities and solve problems by their own.37

When members of the “Harvard school” of the commons say that people do not
want to be consumers, but they want to be makers, they are offering one argument that
was developed by John Dewey with inspiration on Karl Marx. As explained by
Marshall Sahlins in Culture and Practical Reason (1976), humans are concerned with
the sense of productive actions and “the experience men have of themselves and the
objects of their existence in the course of productively transforming the world through a
given instrumental mode” (Sahlins, 1976: vii). The ethics of autonomy presupposes a
conception of humanity that is also Marxian in a way. Nonmarket environments focused
on shared resources and coproduction focuses in this ethical argument: people
participate in the commons because they want to actively produce and be part of
something. It is not simply about sustainability or social justice. People want freedom to
create together.

B. Scales of Normative Arguments and Ethical Values: a framework for critical analysis

After the detailed analysis of the work of the Indiana School, the Turin School
and the Harvard School regarding institutional analysis of the commons, we are in a
position to clarify the normative arguments and ethical values of these theories in a
comparative method.

As I claimed before, we cannot simply assume that these theories have just one
strong ethical value behind them. The reality is more complex. Elinor Ostrom, for
instance, wrote about the need to understand how fallible humans can create effective
institutions for solving social dilemmas in the use of common-pool resources. She was

37
Both Dewey and Marx tried to overcome the concept of individual and replace it with subject. As
noticed by Vincent Colapietro, “while the subject comes to acquire its identity in time and through its
relations, the individual possesses this identity at the outset and apart from others; in other words, it is a
ready-made and self-sufficient being. (…) This natural individual denotes a being whose identity is fixed
apart from its history; in contrast, human subjectivity refers to a reality whose very being is a process of
becoming. (…) The subject is constituted by its relationship to those things with which he is in
interaction” (Colapietro, 1988: 20-21).

22
concerned with efficiency, sustainability and autonomy of communities. She was also
concerned with social justice, access to fundamental resources and how scholars needed
to dismantle simple narratives about the need of private property or extensive regulation
(Ostrom, 1990).

However, if we look closely to the theory, we can notice a kind of scale of

values in which there is one dominant value that is on the top of the others. I believe
that this is something that was not perceived by the literature dedicated to the critical
analysis of Ostrom and other scholars in the field of the commons. By doing this
exegetical exercise, we can see what really matters for these scholars and the dynamic
of ethical values that are intertwined in their theses.

The table below summarizes the argument of this essay. I will further explain
why we should follow this reasoning and why this is helpful for the current debate.

Table 1. Scales of normative arguments and ethical values in contemporary

institutional analysis of the commons
Indiana School Turin School Harvard School

Scale of Dominant Efficiency Social justice Social learning

normative
arguments Secondary Social justice Social learning Efficiency

Discreet Social learning Efficiency Social justice

Scale of Dominant Sustainability Anticommodification Autonomy

ethical
values Secondary Autonomy Sustainability Anticommodification

Discreet Anticommodification Autonomy Sustainability

What the table shows is that different authors – or different schools of thought –
have different normative arguments behind institutional theories of the commons. This
is not self-evident or crystal clear for everyone. In fact, it is hard to perceive why the
framework developed by Elinor Ostrom is so different from Ugo Mattei’s manifesto
about the commons or even Yochai Benkler’s defense of the freedom in the commons.
But the answer lies in the concerns of these authors. As I tried to show, it seems that
Ostrom was concerned about best practices on how to manage shared resources. Her
claim was on efficiency and effectiveness of institutions. Mattei, on the other hand, has
one argument about social justice and the fight against the advance of neoliberalism in

23
new forms.38 His theory of the commons is shaped by this strong argument on access to
fundamental resources, which calls for a neo-naturalistic theory of “the rights of
humankind”. Benkler, on the other side, is concerned about the freedom to learn and the
freedom to create. His theory of the commons is also shaped by this liberal perspective.

The value of this comparison might be that it shows the complexity of the
contemporary debate about the commons. This complexity is not only created by the
fact that the “commons” is misunderstood as resource, as autonomous community and
as institutions (Kip et al., 2015) or that there are problems of translation in the terms
“commons” and “common-pool resources”, especially in non-English speaking
countries (Vanni, 2014). The complexity also lies in the variety of ethical arguments
that are deployed to sustain theoretical visions about the commons. Scholars in the field
should pay close attention to this hidden variation. They say a lot about values,
normative choices and beliefs in the mind of different thinkers.

It is possible that there are other variations and other significant schools that
were not studied in this paper. An interesting exercise would be to compare these three
schools (Indiana, Turin and Harvard) with more literature on the field and see if they
share the same scale of normative arguments and ethical values. This would help us to
separate the literature more easily and to advance a complete “cartography of the field”
– something that still sounds distant, considering the plurality of approaches about the
institutions of the commons.

Finally, this study indicates that there is not just one type of institutional analysis
of the commons, but there are many institutional analyzes – in the plural. Young
scholars interested in the “commons agenda” (Vianello, 2015; Ball, 2015) must pay
attention to these differences, to the “object of study” of different scholars and the
ethical view behind the intellectual constructs in this field.

Conclusion

The commons, in institutional perspective, cannot be seen as a shared resource

or simply as a political movement against privatization and commodification. What
matters is the construction of social facts: the attribution of roles, functions and methods

38
See Mattei (2013) for the debate of the commons as a strategy against “neoliberal governance”.

24
for conflict resolution by members of one community when dealing with one resource
that is used by the members of this community for many reasons, be it consumption or
production.

The reason for confusion in the contemporary debate is that, for many people,
“commons” are not seen as social relations with the capacity to generate institutions
(rules and norms of behavior). They are confused with “common-pool resources” and
“essential goods”. This is reinforced by Elinor Ostrom and Charlotte Hess when they
claim that “commons” is a general term to describe a resource used by a community
(Hess & Ostrom, 2005). The same happens with Ugo Mattei and other Italian scholars
that write about beni comuni and benicomunismo. They claim, at the same time, that
some fundamental resources are the commons and that the commons is a “way of
being” concerned about social justice and the protection of future generations (Mattei,
2014). One strategy to avoid this conceptual problem is to adopt a social-based analysis
of the commons and to focus only in the process of institutional building and
destruction. In other words, how humans deploy a complex set of rules and norms to
regulate how they will interact and grant prerogatives and entitlements for different
actions towards one resource. This can be studied both empirically and at the theoretical
level.39

The institutional analysis of the commons is also characterized by different

approaches regarding normative arguments and the ethical values behind conceptual
frameworks. What I tried to demonstrate in this essay is that we can clearly distinguish
three different schools using these parameters: the “Indiana School”, the “Turin School”
and the “Harvard School”. They all have a unique pattern of combination of arguments
and values (efficiency/sustainability, social justice/anticommodification, social
learning/autonomy).

By contrasting the work of Elinor Ostrom, Ugo Mattei and Yochai Benkler it is
possible to see how the “effectiveness of institutional arrangements” regarding the
management of shared resources sometimes is praised as something more important
than the discussion about who is included and who is excluded, or even the debate about

39
The dichotomy between building and destruction is important for empirical studies, because they direct
the agenda to study not only “governance structures that works” but also those that do not work. In this
sense, the method employed by Elinor Ostrom (1990) can be helpful. This effort for empirical studies can
also confront the critique that the “commons agenda” is political and utopian.

25
the institutional spaces that enhance creativity and autonomy. This is an example of
variations regarding normative choices. For the Indiana School, for instance, efficiency
seems more important than social justice. The ethical reasoning behind is the value of
sustainability as a concept of good life, something that collides sharply with the value of
autonomy used by Yochai Benkler or the value of anticommodification, used by Ugo
Mattei, as a limit for what do with our own lives. We should recognize these differences
and also investigate how other intellectuals think about ethics in the commons.

Finally, the institutional analysis of the commons poses a problem of legal

theory that was not tackled in this paper: the concept of law in institutional analysis. For
Yochai Benkler, for example, the commons are institutional spaces in which there is no
property law. He refuses to accept a “law of the commons” that is immanent from
communities or new legal concepts to regulate cooperative behavior in reciprocal
manner, like the proposal of Ugo Mattei of a new set of constitutional norms for the
protection of the commons in which there would be a right of access and no right of
exclusion. For Benkler, regulation and property would imply the right to exclusion for
someone.40 Law would be the law of the state – and not de facto law as studied by
Elinor Ostrom – and property law would hinder the commons.

The task, for institutional analysis of the commons, is to find some common
ground on the concepts of law and property, moving beyond a purely positivistic
analysis.41 This calls for the unification of legal theory, political theory, social theory
and philosophy. Proper knowledge about the commons would depend on this huge task.

References

Aylmer, Gerald E. (1980). The meaning and definition of “property” in seventeenth-

century England. Past and Present, n. 86, 87-97.
Ball, Sophie Anita (2015). Reclaiming the Commons: a discourse for new politics. How
grassroots activists are shaping the future. Diss. Middlesex University.

40
The narrowed-down vision of property of Benkler is also noticed by Rose (2011) in an essay about the
influence of Elinor Ostrom in American legal scholarship.
41
Weston and Bollier claim that “state law” and “vernacular law” must “mutually constitute each other in
an iterative upward spiral” (Weston & Bollier, 2013: 179). As the basic architecture for law and policy for
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principles of small-scale commons and human rights” (Weston & Bollier, 2013: idem). The idea sounds
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26
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