Экзамен зачет учебный год 2023 / Resta, Systems of Public Ownership

Comparative Property Law: A Research Handbook

eds. Michele Graziadei – Lionel Smith

Edward Elgar 2016 (forthcoming)

Systems of Public Ownership

Giorgio Resta

University of Roma Tre

1.INTRODUCTION

Public ownership is one of the most controversial, and at the same time less studied topics within the whole area of comparative property law.

It is controversial for the simple reason that nowadays any concentration of wealth in the hands of the state tends to be regarded as suspicious, both from a conservative and – more surprisingly – from a progressive perspective. Seen from the right, the accumulation of assets in the state domain is traditionally perceived as a source of waste and inefficiency, if not a threat to civil liberties (see for instance Hoppe, 2011: 3-6). As Philippe Yolka (1997: 11) has observed, several authors regard public property as an “instrument of some totalitarian Moloch”. Indeed, this is consistent with “a binary liberal worldview that naturalises the primacy of the private rights holder and views the state with deep suspicion” (Page, 2013: 197-198). By contrast, from a leftist viewpoint, public ownership tends to be increasingly depicted as a perverse variant of private ownership, detrimental for the interests of non-proprietors and in general of individuals and communities underrepresented in the public arena (Dardot and Laval, 2014: 15; Mattei, 2011: 3; Mattei, 2012: 1128, 1131). A growing tension between the state as owner and the citizens as subjects is indeed apparent not only in western democracies, as a result of the growing takeover of politics by economic powers, but especially in developing countries, where public institutions and corporate interests have frequently colluded in projects aimed at the exclusive appropriation of resources traditionally held in common (Dardot and Laval, 2014: 95-131; Mattei and Nader, 2008). Public ownership – to put it bluntly – raises for the neo-liberal ideology the spectre of socialism, and for the left that of plunder.

The more ideological the controversy tends to be, the stronger the need for a comparative scrutiny of the different systems of public ownership. The comparative legal methodology has a great potential for fostering a critical understanding of the actual working of legal institutions, piercing the veil of ideological and dogmatic superstructures. However, the law of public ownership has been only rarely approached

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from a trans-national and comparative perspective. It has been studied at depth by municipal jurists – more so in the civil law than in the common law tradition – and mainly from an internal viewpoint. One can find dozens of monographs and essays, for instance, on the French “domanial duality” (Chamard-Heim, 2011: 284; Yolka, 1997: 1), on the law and history of public lands in the U.S. (Coggins et al., 2007), as well as on the socialist conception of public ownership (Ajani, 1988: 3-37; Ajani, 1996: 281-315; Malfliet, 1987: 241; Armstrong, 1983: 51). By contrast, quite few studies are aimed at offering a comparative introduction to the various systems of public ownership currently in place in the legal traditions of the world (but see Chamard, 2004: 137-226; Cascione, 2013: 25-125; Gambaro, 2012: 299-335; Habdas, 2011: 626; Vegting, 1950: 1; Iskrow, 1930: 670).

Such a lack of interest cannot be explained on the basis of the limited relevance of the phenomenon: even after the collapse of the socialist model and the rise of neoliberalism, states continue to hold major assets (especially land)1, and legal disputes concerning public property are not fading. Rather, the most significant factor seems to be public ownership’s uncomfortable position on the frontier between private and public law. In part expression of imperium, in part of dominium (the two dimensions being closely intertwined: from the perspective of international law see Redgwell 2010: 101, 109-112), public property naturally challenges the orthodox juridical taxonomies (McLean, 1999: 1-3).

On the one hand, it has generally been considered – especially in the civil law tradition – a province of administrative law (Gambaro, 2003: 4). However, the widespread assumption that public law is deeply rooted in the national experience of every country, has significantly delayed the development of a critical mass of studies on comparative administrative law (Nehl, 2012: 21; Napolitano, 2007a: 1). Such an attitude has been largely overcome, but many subjects are still waiting to be extensively covered, public ownership being one of them (Chamard, 2004: 132). 2

On the other hand, learned writings on comparative property law deal almost exclusively with private law (Gambaro, 2005: 215-239; Gambaro, 2009: 47-87; Candian et al., 1992; Chang and Smith, 2012: 2). The phenomenology of public ownership has therefore been left at the margin. This is not striking, insofar as public property has mainly been regarded as a limit to private exclusive appropriation (Mattei, 2000: 93). Therefore, it has been perceived as an autonomous sub-system, informed to a peculiar logic, and consequently not particularly instructive for the general theory of property rights (Watson Hamilton and Bankes, 2010: 19-20; Page, 2013: 195). As John Page (2013: 196) has observed, “public property in land is typically defined by what it is not: property that is not private property”.

1For instance, in Canada about 90 % of all land belongs to the Crown domain (Dussault and Borgeat, 1989: 13); in Australia, Crown land amounts to 50 % of New South Wales and 93 % of Western Australia (Page, 2013: 197); in New Zealand, conservation land alone amounts to one-third of total surface area. Even in the United States the federal government – which “was originally regarded as temporarily holding this land as a trustee until it could be claimed in various ways by settlers” (Merrill, 2011: 77) – still own about 30 percent of America’s total surface area (Glicksman-Coggins, 2012: 1).

2It may be noted that in two of the most recent comparative administrative law handbooks, the topic of public property is not specifically considered: see Rose-Ackerman – Lindseth, 2010; Napolitano, 2007.

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2. TERMINOLOGY AND TAXONOMY

The first element that strikes any observer, who approaches the comparative law of public ownership, is the lack of an established and consistent terminology. Different expressions are employed, even in the same legal system, to designate the same phenomenon (Gambaro 2012: 299-301), while the same expression – typically: “public property” – is used in different traditions to describe diverging phenomena.

The major amphibology, both synchronically and diachronically, is related to the term “public”. In some contexts, “public” is taken as a synonymous of “state”, whereas in other it simply means “collective”, or “belonging to the people” (for a fascinating historical account see Di Porto, 2013: 12-13; Pravilova, 2014: 41-47).

In civilian systems, the notion of “public” is commonly employed in the former sense: “public” essentially means “the state”, or one of its political subdivisions (Chamard, 2004: 133). Therefore, “public ownership” refers to the whole gamut of a state’s proprietary rights over natural (such as land, lakes and rivers) and artificial (like buildings or military compounds) resources, as well as intangibles (like copyright, patents, and radio frequencies). 3 The state domain is severed from the private domain, which consists of property belonging to private individuals and legal persons. Even so, there is no perfect consistency in the lexicon, for the same phenomenon is sometimes designated by referring to the object, rather than to the structure of the entitlement: “public things”, instead of “public ownership”.4

In the common law tradition, and namely in U.S. law, the word “public” tends to be used more flexibly, as to generate a wider spectrum of meanings. “Public [or state] ownership” is an expression devoid of any ambiguity, designating property vested in the state, government or Crown (Merrill, 2011: 78; Clarke and Kohler, 2005: 35). However, it is not used very often, and is not capable of identifying a specific legal regime applying to the items included in the category. “Public property”, by contrast, is a notion more commonly employed, although less univocal. At times it is used as a synonymous of “public ownership” (for instance Ziff, 2014: 7; Huber, 2014: 1019-1020; Harris, 1996: 104105). More often, it is meant to designate resources collectively owned, with privileges of access and use being shared by the public at large (Rose, 1986: 721, 739; Clarke and Kohler, 2005: 37-38, 40; Page, 2013: 196-197).5

3Under EU law frequencies are considered public property: see the decision of the European Court of Justice of January 22, 2015, Case C-282/13, T-Mobile Austria GmbH v. Telekom-Control-Kommission (§ 90); March 21, 2013, Case C-375/11, Belgacom SA et al. v. Belgian State (§ 50).

4But even in the same legal system there might be terminological inconsistency: for instance, art. 42 of the Italian Constitution provides that “ownership is public or private”; whereas Book 3 of the civil code constantly refers to “public things” (beni pubblici) (see Giannini, 1963: 1).

5Such ambiguity appears even stronger if the 19th century colonial law is taken into account: the notion of “public lands” was sometimes used as a synonymous (or at least a functional equivalent) of the more common “crown lands”, meaning the unalienated territory acquired by the Crown; in other cases it was employed to designate “native lands”, that is lands belonging to native inhabitants (Meek, 1946: 88). In the United States after the Revolution, the term “crown land” was abandoned, in favour of the more emphatic notion of “public domain” (Weaver, 2003: 66). Also the notion of “public domain” is affected by some ambiguity, being referred to two completely different phenomena: a) the lands originally open and now vested in the state; b) the intangible commons, that is the whole spectrum of information not being the object of intellectual property rights (Merrill, 2011: 77).

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It is worth remarking, secondly, that the dichotomy between “public ownership” and “private ownership” obtains taxonomic value in a limited number of legal traditions (Gambaro, 2012, 300). Indeed, such a distinction is conceptually meaningful, provided that two basic conditions are satisfied: a) state institutions do exist; b) different sets of rules apply to each category of property (Chamard, 2004: 131-135). This is not always the case: chtonic traditions, for instance, seem to ignore the category of public ownership, insofar as they do away with state institutions altogether and attach a very limited value to the distinction public/private (von Benda-Beckmann, 2000: 156). But even within the Western legal tradition, the lexicon of public ownership is highly diversified.

In countries like France, Italy, Belgium or Spain, the dichotomy between public ownership and private ownership has a pivotal position, since rules and procedures governing each category of property are radically different (Chamard, 2004: 155-159). Public law provisions apply to the former, in particular with regard to the issues of management, protection and alienation,6 whereas private law governs the latter; disputes concerning public ownership (and namely property devoted to public use) are tried in administrative courts, and not in ordinary courts. The basic distinction between public and private ownership is sometimes mirrored in constitutional documents, such as the Italian (art. 42) and the Portuguese Constitution (arts. 80, 82, 84). However, even in civilian countries it is generally recognized that there is no absolute incompatibility between “public” and “private” property, the difference between the two dimensions being one of degree, rather than of substance (see Rodotà, 1990: 43-45; Geisler, 2000: 6679). It is related, in other words, to the peculiar legal techniques used to balance public and private interests, and not to the ontology of things. Clear proof of this are some ‘legal hybrids’, located on the frontier between private and public ownership, like cultural property, which may be privately owned, but is subjected to a peculiar legal regime aimed at guaranteeing access and protection (Graziadei, 2010: 24-31); or public assets transferred to private companies, invested with their management and conservation for the public benefit (Della Cananea, 2009: 304-305; Napolitano, 2004: 541).

In the common law tradition, where the public/private divide is relatively less clear, although not inexistent (Dawn, 2009: 1-16), the dichotomy between public and private ownership is weaker (Cascione, 2013, 99-102). Indeed, both private and public ownership are – as a matter of principle – subject to the common law (but see below § 6.3). The category of “public ownership” has accordingly no autonomous normative value and cannot be purposefully opposed to private ownership (Della Cananea, 2009: 299-300; Gambaro, 2012: 322). Not surprisingly, the notion of public ownership is theoretically underdeveloped in the Anglo-American tradition, at least much more so than in the civil law tradition (Page, 2013: 195).

3. FUNCTIONAL ISSUES

6 In addition to the peculiar legal regime concerning the transfer and protection (see below § 7.2), one should also mention the existence of specific checks on the way in which public property and public funds are managed. These are commonly in charge of the national Courts of Audit, like the French Cour de comptes, which play an important role in respect of the various schemes of public/private partnerships (see generally Noguellou and Stelkens, 2010: 1-24, 428).

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The distinction between private and public ownership seems to be inherently variable and context-specific, deriving its actual content from the general institutional framework in which it is embedded. It is the product of history and social conditions, which deeply shape the physiognomy of “public ownership” (see Chamard, 2004: 47-135; Pravilova and Muller, 2009: 579-582). Conceptual tools and legal mechanisms are therefore heterogeneous and it would not be easy to provide a comparative overview, without first reflecting on the functional issues involved. Following a suggestion by Richard Epstein (1987: 414), it can be argued that the law of public property has to address two main questions:

a) what kind of property, if any, should be vested in the state (or in the public), and what instead should be left in private hands?

b) what legal regime should apply to public ownership, in particular with regard to the transfer from public to private?

In the remainder of this chapter, §§ 4-5 deal with the first issue, whereas §§ 7-7.3. focus on the second.

4. ORIGINAL ALLOCATION: PUBLIC, PRIVATE, COMMON

It is widely accepted that it is not necessary, nor useful, for property to be vested either in private or in public hands (Epstein, 1987: 411). A mix of the two is the solution nowadays prevailing worldwide (Clarke and Kohler, 2005: 35; McAuslan, 1988: 201-206). Moreover, compelling critiques have been advanced in recent times, arguing that certain resources, instrumental to human flourishing, should be withdrawn both from the private and the state domain and held in common (Rodotà, 2012: 318; Harvey, 2011: 101; Dardot and Laval, 2014: 11-20). International law offers several examples of common property resources to be enjoyed for the benefit of all humankind, as is the case for the resources of the deep seabed under art. 136 of the 1982 Law of the Sea Convention, or underwater cultural heritage (see Redgwell 2010: 110-111; and Dromgoole 2013: 120, respectively). However, the category of the commons is gaining increasing recognition even in domestic jurisdictions, encompassing both tangible goods, such as water (Mattei, 2013: 366), or intangibles, like information about the structure of the human genome (Resta 2012: 35-36).

Most legal systems in the West rely on a binary model (public/private). However, in some cases, a tripartite classification is adopted, either at a constitutional or at a statutory level. An example of the latter is represented by the civil code of Louisiana, whose art. 448 reads as follows: “Things are divided into common, public and private” (Yiannopoulos, 1961: 697; Lovett et al., 2014: 64). Public things are defined as things “owned by the state or its political subdivision in their capacity as public persons” (art. 450); private things, by contrast, are “owned by individuals, other private persons, and by the state or its political subdivisions in their capacity as private persons” (art. 453); commons are things that “may not be owned by anyone” (art. 449). Among public things are “running waters, the waters and bottoms of natural, navigable water bodies, the territorial sea, and the seashore”, as well as “streets and public squares” (art. 450, pars. 2 and 3). “The air and the high sea”, as well as things “that may be freely used by everyone conformably with the use for which nature has intended them” are conceived of as commons (art. 449).

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Notwithstanding its conceptual weaknesses (Yiannopoulos, 1961: 700), such a classification is interesting, for it assigns an autonomous role to the old Roman category of the res communes omnium. This has disappeared in many modern civil codes, like the German and the Italian (Yiannopoulos, 1962: 767-769), but has made a sudden resurgence in the last two decades (Míguez Núñez, 2014: 7). It goes beyond the aims of this chapter to deal with the history and contemporary relevance of the commons (see Marella, 2013: 9; Dardot and Laval, 2014). However, one element has to be underlined, and namely the fluidity of the boundaries among the three spheres. Contrary to an essentialist argument, which was very influential in the past and is still widespread (on the French theory of things belonging to the domaine public by their own nature, see Gaudemet, 2008: 46), the construction of a certain thing as private, public or common, is not the result of its ontological features, but of an artificial decision of the legal system. This has been apparent since the epoch of the Roman republic, when public things (res publicae) and sacred things (res sacrae) were subject to a similar legal regime and were both withdrawn from legal transactions, as a result of a formal deliberation of the political or religious authority (Thomas, 2015: 39-40; 2004: 40). Such assessments are inherently contingent and open to the influence of cultural, economic, and social transformations, as Émile Durkheim (1950: 163-164) thoughtfully observed. 7 As a result, the items listed in each category are exposed to far-reaching variations, both on the diachronic and on the synchronic level. Comparative law offers multiple examples of such variations.

Under the Civil code of Louisiana of 1870, for instance, both running water and the seashore were regarded as commons (Lovett et al., 2014: 64-65). This was the solution adopted by the Institutes of Justinian8 and reaffirmed in early Spanish law (Meyer, 1984: 117; Cavallo Perin and Casalini, 2010: 429-430). In the following century, however, the legislature enacted a number of statutes, reclassifying both the running water and the seashore as public things, arguably with the aim of deriving profits for the public budget (Yiannopoulos, 1961: 700). As a consequence, the category of the commons has dramatically shrunk, including only the air and the high seas (Lovett et al., 2014: 64), whereas the category of public things has been significantly expanded.

If in this case the shift has been from common to public ownership, several instances may be recalled, highlighting a different itinerary: from common to private, and from private to public. The most egregious example of the former is constituted by the English enclosure movement, famously analysed both by Marx (1957: 794-812) and Polanyi (1957: 33-42). As regards the latter, the Russian case is particularly significant. As Ekaterina Pravilova (2014: 23-26) has recently shown, the law of property in prerevolutionary Russia has passed through two opposing waves. First, under Catherine the Great, natural resources such as rivers, lakes, minerals and forests, were made the object of property rights, obviously in favour of the nobles. Although presented as the “benevolent gesture of a reformist monarch, an acknowledgement of nobles’ freedoms” (Pravilova, 2014: 25), this move implied a dramatic shift from a situation in which

7“Le cercle des objets appropriables n’est pas nécessairement déterminé par leur constitution naturelle, mais par le droit de chaque people. C’est l’opinion de chaque société qui fait que tells objets sont considérés comme susceptibles d’appropriation, tells autres non. Ce ne sont pas leurs caractères objectifs, tels que les sciences naturelles peuvent les déterminer, c’est la façon dont ils sont représentés dans l’esprit public”.

8Justinian, Institutes, 2.1.1.

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peasants had customary access to natural resources, like timber, which were traditionally held in common, to one based on the logic of private ownership. This was consistent with the assumption of private property as the main catalyst for economic activity, but in the long run it proved detrimental both for the economic development of the land, leading to cases of underor over-exploitation of such resources, and for the social fabric. Starting with the second half of the 19th century, and also under the influence of the land law regimes designed for the new colonies in Caucasus and Transcaucasia (Pravilova and Muller, 2009: 588-596), the opposite movement started to gain momentum. Natural resources privatized at the time of Catherine, were pushed back into the public domain. They were not, however, vested in the general public, but in the State: state ownership became a major component of the Russian law of property (Pravilova, 2014: 55-127).

Comparative law is also rich of examples of synchronic variations, which are not limited to variations among different societies and traditions (as it was most evident at the height of the socialist experience), but characterize the same legal system, as applied in different parts of the world. The proprietary regime of waters in the French colonies is a clear evidence of this and will be discussed below (§ 8).

5. WHY PUBLIC PROPERTY?

If the allocation of resources is mainly a matter of artificial decision-making, then it is particularly important to consider the arguments that might support the vesting of a certain resource in the public domain. Whereas a copious literature deals with the justification of private ownership, fewer studies have been devoted to public ownership. This can be explained, arguably, on the basis of the widespread assumption of private ownership as the baseline model (Giannini, 1963: 5; Hamill, 2012: 370). However, one might single out at least three types of arguments, which have been put forward to provide a rational explanation of the existing forms of public ownership.

The first one is the economic. Scholars writing from a law & economics perspective have argued that a certain set of resources, and namely natural resources having the characters of pure or impure public goods (like forests, lakes, rivers, etc.), are better managed if they are withdrawn from exclusive private appropriation and vested in the government (for a synthesis see Rose, 1986: 717-719; Cooter et al., 1999: 184-188). A recurrent explanation starts from the paradigm of the “tragedy of the commons” and looks at state’s intervention as a necessary tool to solve the conflicts arising from incompatible uses of the same resource. By excluding private property and vesting such things in a single (collective) owner, society avoids the risk of letting them be overconsumed, and in the long run destroyed. 9 A related, albeit not exactly equivalent explanation, focuses on the economics of transaction costs and on the interface between

9 This, of course, is merely a theoretical prescription, which is not always supported by empirical research. For instance, in the 1950’s and 1960’s many developing countries, and particularly those that regained their independence after the colonization, engaged in massive programs of nationalization of natural resources, like land and water, mainly as a way of asserting sovereignty (Ostrom, 1999: 495; McAuslan, 2013: 12-15). However, such a shift did not lead to an improvement in the management of these resources, but often worsened the pre-existing situation, by interfering with the system set up by local communities under traditional norms (Ostrom, 1999: 495, with further references).

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systems of allocation and rules of transfer. Moving from the basic assumption that “property should be subject to that form of ownership that minimizes the bargaining problems associated with moving the asset to its highest-valued use”, Richard Epstein (1987: 414) argues that resources like highways or navigable rivers should be held in public hands (the government, or the unorganized public), in order to avoid the bargaining and hold-out problems involved in the establishment of a system of private property. This line of thought has been further developed and refined by the most recent theory of the anti-commons (Heller, 2011: 57).

The economic perspective adds important insights to the understanding of the logic of public property. However, its explanatory value is limited to the hypothesis of natural resources having the characters of public or semi-public goods. By contrast, it does not seem capable of providing a rational justification for all property vested in the public domain. Many resources, not fitting into the categories of public goods or common pool resources, are actually owned by the state and its political subdivisions (Davies, 2007: 64; Gaudemet: 2008: 43). Public buildings, historic monuments, and other things in use by the public administration are the most obvious example (see for instance art. 822 of the Italian Civil Code). Although it might be economically sound for barracks, courts, police stations to be built and owned by private subjects, and subsequently leased to the state, such resources are in many cases owned by the government. The example of prisons is striking (Barak-Erez, 2011: 138). There does not seem to be any compelling economic reason for prisons to be owned and managed by the state; and indeed some Western countries have started to privatize correctional services. However, this solution met strong opposition, and many jurisdictions still retain the traditional regime of public ownership and management. This is not so surprising. If prisoners are to have the same rights in public and private prisons, the different oversight regimes that govern public and private facilities make private prisons comparatively more difficult for the public to monitor and improve than public ones (see generally Tartaglia, 2014: 16911692, 1742; Gold, 1996: 359).

To sum up, economic considerations have to be supplemented by other arguments. Among the most compelling, is the institutional one. It can be argued that certain things need to be vested in the state insofar as they are inherently instrumental to the provision of a public service (Chamard, 2004: 321-337). Even though no substantial issue is involved in terms of conflicting uses, anti-commons, etc., an elementary idea of workable democracy requires such things to be withdrawn from private exclusive appropriation and market exchanges (see generally Sandel, 2012). As an example, art. 9 of the Preamble to the 1946 French Constitution provides: “all property and all enterprises that have or that may acquire the character of a public service or de facto monopoly shall become the property of society.” (Levinson, 2011: 165). Pushing the argument further, one might assume that things instrumental to the unimpeded exercise of civil liberties should be vested in the state and other public institutions (Chamard, 2004: 320-323) . One might think, for instance, of roads, squares, halls or even cemeteries: if they were transferred into private hands, freedom of movement, freedom of expression and freedom of religion would be endangered (Chamard, 2004: 321; Habdas, 647-649). A visible proof are the legal disputes arisen with regard to the exercise of free speech in the malls, the modern

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agorà of capitalistic societies (Gray and Gray, 1999: 20). 10 In a similar line of reasoning, scholars like Carol Rose (1987: 774-781; see also generally Arendt 2005: 37-43) have emphasized the socializing effect of public property, which helps fostering interpersonal relationships and strengthens the sense of belonging to a political community.

The institutional argument, like the economic one, may be challenged on several grounds. Above all, it may be contended that, in order to perform a public service, it is not necessary to resort to state ownership of the things destined to public use. It may suffice that the utilities derived by such things are subject to a public property regime, in particular in terms of privileges of access (see generally Della Cananea, 2009: 304-305; for a survey of the arguments supporting various forms of privatization, Rose, 2006: 694698). However, one could answer that such a shift towards a model of ‘conformed’ private property involves significant distributive effects, insofar as the general public, or the state, shall be somehow required to compensate the private owner for the use of the resource. A similar line of reasoning is implied in the third explanation, the one based on distributive justice. At least since the French revolution, several authors have argued that the expansion of the sphere of public ownership is necessary “to repair the misfortune of members of society” and “to relieve people of the burdens of tributes in difficult times” (Saint-Just, 1800, 1946: 319). Arguments cast in such terms are frequently made by proponents of the commons-based model of resources allocation and management (see Di Robilant 2012: 267, 293-320). Namely, it is often maintained that by letting private property expand to increasingly wider spheres of social life, the fundamental principle of equality would be seriously endangered (Ferrajoli, 2103: 142147). By contrast, public property is the only legal regime that grants non-proprietors free and unrestricted access to resources potentially relevant for the free development of human personality.

6. WESTERN SYSTEMS OF PUBLIC OWNERSHIP

All the arguments thus far considered suggest that it is rational and desirable for a democratic society to withdraw certain sets of things from private exclusive appropriation and hold them as ‘public’ property. Obviously, the scope and content of such a public domain may vary significantly, depending on the specific philosophy of ‘public-ness’ adopted. Moving from an efficiency-based theory, the scope of public ownership will be narrower than the one supported by the institutional approach, which tends to be less demanding than the egalitarian one.

The normative question can however be left aside, not only because it pertains more specifically to the field of comparative economic systems and political theory (see Pryor, 1970: 159; Epstein: 1997: 411-412), but also because in many cases what matters most is the issue of use and not simply of ownership of things (Sax, 1983: 315; Gambaro, 2012: 303, 320). Therefore it is critical not only to focus on the aspect of formal ownership, but also to look at the legal techniques employed to disarticulate ownership and uses of (public) things (see generally Napoli, 2014: 222-232). In order to do that, it is

10 See Appleby and others v. UK, 6-5-2003, App. n. 44306/98 ; Robins v. Pruneyard Shopping Ctr., 592 P.2d 341, 347 (Cal. 1979), aff'd sub nom. Robins v. PruneYard, 447 U.S. 74 (1980) ; for further references see Batchis (2012 : 316-333).

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useful to provide an overview of various systems of public property, which will show that government-based ownership is just one of the several mechanisms capable of ensuring that uses of resources relevant to the public be protected and maintained in a condition of ‘openness’. Consistently with the criteria detailed in § 2, as regards the distinction between private and public ownership, the focus will be mainly on western legal systems.

6.1. THE FRENCH MODEL

The first model that can be singled out is informed to the logic of so-called domanial duality (dualité domaniale). Originally developed in France, it has been transplanted, with various adjustments, into many civilian jurisdictions, both European (like Belgium, Spain, Portugal, Italy, Greece), and non-European (mainly in South America and Africa) (Chamard, 2004: 144-149).

The French system of public ownership relies on the following elements: a) existence of a systematic and comprehensive regulation concerning the whole gamut of public things; b) distinction between property destined to a public use or public service (domaine public), and property owned by the state in the same manner as it would be owned by an individual (domaine privé); c) coincidence between ownership and use: public things devoted to public use are vested, as a matter of principle, in the state or its political subdivisions.

The general provisions on public ownership are to be found, nowadays, in the General Code of Property of Public Bodies (GCPPB) of 2006 (Chamard-Heim, 2011: 284). 11 It cannot be overlooked, however, that the basic rules on public things were originally included in the Code Napoléon, in arts. 537-541. This might appear puzzling. Why provisions on public things in a civil code? The question is an interesting one, because it sheds light on the particular perspective from which the civil law has traditionally approached public ownership. Borrowing an expression used in a slightly different context, we might define it as the logic of “anti-property” (Bell and Parchomovsky, 2003: 1; Yolka, 1997: 146). Public ownership, and more specifically property dedicated to a public use, has been historically conceived of as a type of property inherently alien to the ordinary paradigms of appropriation and exchange.

The French civil code takes a great effort to sever the domain of private ownership from what is not appropriable and alienable (Chamard, 2004: 115). For instance, art. 1128 expressly withdraws all things traditionally considered extra commercium from the circuit of contractual exchanges. Art. 714 deals with the so-called res communes omnium, that is “things which belong to nobody and whose usage is common to all”, providing that “public order statutes regulate the manner of enjoying them”. Following the same logic, Chapter 3 of Book II of the Code, concerning “property in its relations with those who own it”, regulates public property. Art. 538 – now abrogated by the General Code of Property of Public Bodies – is particularly significant, because it gives textual evidence to the logic of anti-property. It provides that: “ways, roads and streets of which the State is in charge, navigable or floatable rivers and streams, beaches, foreshore, ports, harbours,

11 Code Général de la Propriété des Personnes Publiques (available at the address http://www.legifrance.gouv.fr/affichCode.do?cidTexte=LEGITEXT000006070299&dateTexte=20080505).

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