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The Turning Point in Private Law

Ecology, Technology and the Commons

Ugo Mattei and Alessandra Quarta

Can private law assume an ecological meaning? Can property and contract defend nature? Is tort law an adequate tool for paying environmental damages to future generations? The Turning Point in Private Law explores potential resolutions to these questions, analyzing the evolution of legal thinking in relation to the topics of legal personality, property, contract and tort. The authors pose a suggested list of basic principles for a new, ecological legal system in which private law represents a valid ally for defending our future.
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Conclusions

Ugo Mattei and Alessandra Quarta

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The current system of private law works as a powerful decentralized machinery—incentivizing extraction. Morphed by the need to transform commons into capital, for centuries it has provided the backbone of capitalist development. As Evgeny Pashukanis indicated, the essence of law in the modern bourgeois order is the commercial transaction. The law stems from commercial dealing: it commoditizes everything. It cannot even be contemplated outside of this process: from commodity (extracted from the commons) to private law to another commodity (new frontiers of commoditization through exchange value). This process of C-L-C transformation can be better understood by looking at law in a broader perspective, not only as a product of bourgeois modernity but also as a cultural and political artifact with deeper roots in earlier or different social organizations that bourgeois modernity has deployed to the fullest extent to increase dramatically capital concentration. If this broader sequence is adopted, then the first C has to be read as Commons, thus discounting into the function of private law the legitimization of primitive accumulation. The function of modern private law is that of determining individualization and group dissolution as a fundamental prerequisite of the unimpaired exploitative extraction of value. The risk-taking individual can thus exploit and expose to risk commons and other individuals that will work for him through contract law. All collective structures (e.g. trade unions, professional guilds, collective landownership, extended family ties) that offer protection from active and passive exploitation are thus “outlawed” by modern private...

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