Keywords: commons; procedure; roman law; class action; customs.
The relationship between the growing social diffusion of the claims related to the
commons and their legal definition is far from being clarified. This essay focuses on
this conundrum, which is considered to be paradigmatic of that "refractional" relation
between the multiplicity of social practices and the autonomy of legal concepts.
After a reading of the still scanty legal literature on the commons, this will appear to
be pivoting around a dichotomy: the one separating function from entitlement. Concepts
such as "Community" or the "Common" are usually called into question as potential
responses to this problem. This legal impasse, which seems more a second-best
than a solution, is also a chance to propose a "Roman" genealogy of the commons.
Through a close reading of two crucial essays by Yan Thomas on the civil institution
of the city and on the res religiosae the essay will show that procedure, and especially
collective legal actions such as class actions, might be the actual domain which allows
for a stronger politics of the commons.