Res Communes Omnium: The History of an Idea from Greek Philosophy to Grotian Jurisprudence

Schermaier, Martin

doi:10.1163/016738309x12537002674204

Cited by 12 publications

(5 citation statements)

References 0 publications

Supporting

Mentioning

Contrasting

Order By: Relevance

“…As a legacy of successive historical experiences that have contributed to the establishment of a dogmatic basis for the present-day conception of res communes omnium, the idea of protecting things that are common to all humanity, including the seashore, is also an essential concern of Croatian legislation. Croatian seashore's legal status as a maritime domain is defined by three distinctive legal sources: the Constitution of the Republic of Croatia (Constitution), 38 the Act on Ownership and other Real Rights (AORR), 39 and the Maritime Domain and Seaports Act (MDSA). 40 On the highest order of Croatian legal hierarchy, the Constitution in its Article 52 defines, inter alia, the Croatian seashore a good of interest to the state.…”

Section: Legal Statusmentioning

confidence: 99%

Troubled Waters : Croatian Seashore as Res Extra Commercium in Commercio

Žiha

Sukačić

2023

View full text Add to dashboard Cite

This paper seeks to examine the special legal nature of the Croatian seashore as a common good and the challenges of its commercial use. It was Roman law that first recognized the seashore as a thing that was res communes omnium – common property of all men under natural law. Roman jurist Marcian defined it as all air, running water, sea, and the seashore as far as the high-water mark. In Croatia, based on this Roman doctrine, the seashore is considered a maritime domain, the welfare of which is of interest to and under special protection of the state. Although maritime domain should not be presumed as a subject of ownership or commerce (extra commercium), due to numerous legal exemptions, its common good-character has become a point of contention.Contemporary legal solutions in Croatia (especially the Act on Ownership and Other Real Rights (Zakon o vlasništvu i drugim stvarnim pravima), the Maritime Domain and Seaports Act (Zakon o pomorskom dobru i morskim lukama), and the Concessions Act (Zakon o koncesijama)) grant exclusive rights to commercial exploitation of the maritime domain for up to 99 years, as well as provide for pledging or transferring of concession. In doing so, this paper reasons, the Croatian legal system has to a certain extent alienated the legal nature of the maritime domain and de facto created a new ‘quasi-real right’ on the common good.

show abstract

Section: Legal Statusmentioning

confidence: 99%

Troubled Waters : Croatian Seashore as Res Extra Commercium in Commercio

Žiha

Sukačić

2023

View full text Add to dashboard Cite

show abstract

“…The concept of communal property can be traced back to the Roman law category of res communis (or res communes omnium ) (Schermaier, 2009). This concept had disappeared in some civil law systems, including in Germany and Italy, but has recently experienced a resurgence and has been re-introduced in some systems (Resta, 2017).…”

Section: Conceptual Characterisation Of Property Rights In Wastementioning

confidence: 99%

Transitioning towards circular systems: property rights in waste

Steenmans

Malcolm

2020

JPPEL

View full text Add to dashboard Cite

Purpose The purpose of this paper is to explore the impact that property rights can have on the implementation of circular waste economies, in which waste is reused, recycled or recovered, within the European Union’s Waste Framework Directive. Design/methodology/approach A theoretical lens is applied to the legal definition as well as production and treatment cycle of waste to understand the property rights that can exist in waste. Findings This paper argues that even though different property rights regimes can apply to waste during its creation, disposal and recovery, the waste management regulatory and legal system is currently predominantly set up to support waste within classic forms of private property ownership. This tends towards commodification and linear systems, which are at odds with an approach that treats waste as a primary wanted resource rather than an unwanted by-product. It is recommended that adopting state or communal property approaches instead could affect systemic transformative change by facilitating the reconceptualisation of waste as a resource for everyone to use. Research limitations/implications The property rights issues are only one dimension of a bigger puzzle. The roles of social conceptualisation, norms, regulations and policies in pursuing circular strategies are only touched upon, but not fully explored in this paper. These provide other avenues that can be underpinned by certain property regimes to transition to circular economies. Originality/value The literature focused on property rights in waste has been very limited to date. To the best of the authors’ knowledge, this paper is the first to consider this question in detail from a legal perspective.

show abstract

“…Moreover, despite their differences, both Hayek and Karl Polanyi dispensed with 'freedom of contract' at the front door of the familial household and at the edge of presumably archaic tradition. For the Spanish Scholastics, freedom of contract found its limit-case in the proper, categorical orders of oikonomia (the law of the household), and the ius communes took its form of 'right reasoning about properties' from a natural law understanding of the oikos (Schermaier 2009). In Hayek's terms, this is pattern recognition and pattern prediction (1994).…”

Section: Spontaneous Orders and Selective Conservationmentioning

confidence: 99%