At a time when joint/common management appears to be a serious path for improving the functioning of our cities, the territorial experiences at work call for a new practice of law to become a lasting part of our public policies. They invite public officials, lawyers, actors of public innovation, researchers, to tap into the right of use, to dig into constitutional principles and to develop our legal ingenuity and our best diversion practices to invent new models and work on our administrations’.
What if, in order to go beyond experimentation, it became necessary to invent a new regulatory grammar?
BREAKING THE LEGAL GLASS CEILING OF SOCIAL AND PUBLIC INNOVATION
Observing that in Lezoux most the territory’s book reserve was mainly located among the inhabitants homes, the media-librarians imagined a mobile library, a book-sharing tool managed in semi-autonomy by the readers. In Cluny, we support the care of carers, which relies on cooperation between trusted intermediaries (tobacconists, pharmacies, etc.) and social services. In Revin, the design by use of a new high school leads to opening up this space a little more to the inhabitants, thus becoming an almost public space. And in the private sector, Sauvlife makes the connection between the citizen who gives the alarm of a heart attack and the fireman ready to intervene.
As different as they appear, these ideas all share a common point: they operate a shift towards the usus right (use of a good or a right), at the expense of the abusus right (using the good till its destruction). In this respect, they share a common approach, that is to say the idea of a community of use, able to define its own rules for using the resource which considered as a good or a right, open to all users, in order to defend, preserve or improve this resource.
Often designed and tested in an experimental approach, these initiatives offer new and efficient responses to the challenges they address. But their apparent simplicity hide many legal challenges in terms of implementation for the public authority. What about the responsibility of the public actor in terms of health risk and food safety of a shared fridge, which is de facto aimed at users outside the sole spectrum of the members of the association who designed it ? What about the status of Sauvlife contributors, who are almost like firefighters, but who also have the freedom not to intervene? In the case of a high school, how can we make multiple use of public equipment reserved for minors possible ?
When some areas of public action are managed and used in a mutualized way, this fundamentally upsets the public actor’s main pillars : its responsibility against the risks, its contributors and the way to value them, links with the commercial sector and even the legitimacy to raise taxes in order to finance services which have become commons.
Unsurprisingly, there are only very few initiatives of this type that pass the experimentation stage due to the lack of a clear and secure legal framework. And when that happens, it often comes down to individual qualities: an elected representative ready to take the risk, teams of agents and citizens with exceptional involvement.
TOWARDS AN ADMINISTRATIVE LAW ON COMMON GOODS
It therefore appears necessary to imagine a legal framework that alleviates the burden on individuals in some way. This is the ambition of the administrative law of commons, capable of defining general rules for the sharing of these commons by private persons. At the crossroads of three key concepts of public law – public service law, public economic law, public authority law – this new field aims to rethink all the concepts that support the theory of administrative law in order to respond to these new organizational and service management needs undertaken by the public actor.
It can build on shared administration regulations, developed by the Labsus laboratory in Italy and active in more than 200 cities – including Bologna, Genoa, Florence, Turin. Relying on horizontal subsidiarity stipulating that “the State, the Regions, metropolitan cities, provinces and municipalities favor the autonomous initiative of citizens, alone and associated, for the development of activities of interest general, based on the principle of subsidiarity ”, these regulations allow cities to sign Pacts of collaboration with the citizens of the city. These pacts allow a close collaboration between citizens and public officials to co-administer common goods : green spaces, heritage maintenance, solidarity…
By reconciling certain Italian notions with principles of French law – such as the Italian principle of horizontal subsidiarity with the theory of occasional collaboration with the public service – it seems possible to carry out an effective transposition of such a regulation.
BUILDING A LEGAL CULTURE FROM ACTUAL CASES
A legal culture of managing collectively needs to be built, by creatively mobilizing legal texts and case law to offer tailor-made frameworks with political ambitions. In this regard, cooperation between public actors and law schools turns out to be an interesting path. In addition to educating future generations of jurists, this allows those working in local administration to renew their monitoring practice, and communities to build lasting ties with the academic world.
In Grenoble, the establishment of a territorial legal clinic – an exercise in deciphering and proposing regulatory frameworks to concrete situations – by the law faculty thus enabled students to take a close look at these topics during the Cities in Transition Biennial in March 2019, which call for the crossing of different fields of public law. And thus identify relevant legal levers and case law on which to rely.
On this occasion, local lawyers had notably suggested to the students of the Grenoble regional legal clinic to secure the implementation of shared fridges – these are initiatives to fight against food waste by providing free fresh food in fridges posted on the streets.
Once these fridges are freely accessible and placed on the streets, the Mayor’s responsibility is engaged under his police powers, public health and the conservation of the public domain, which leads him to carry out control operations . By exploring the decrees and the potential offered by the public management model, the students set out the contours of a public-common partnership which is sustainable from the point of view of the public actor and which promotes the development of this solution.
WORKING ON THE FLEXIBILITY OF ADMINISTRATIONS
Finally, the field teaches us that we must go beyond the framework of public law alone to find lasting solutions. Faced with the issue of civil liability for the occupation of a vacant public building by a “third place”, we can wonder how to reverse the problem, and confront the public actor on its responsibility for not occupying or not using reinvested spaces ? Sometimes the answers may lie on the side of fundamental rights and constitutional law.
Sometimes the answers are even outside the law: on the side of funding mechanisms and participatory democracy, or even managerial innovation. The implementation of participatory budgets, or the occasional collaboration in the public service, for example, requires rethinking the agent’s role: what is his mandate when services are co-produced ?
Faced with this bundle of issues and levers, lawyers, territorial agents, innovation professionals and “commoners” would benefit from sharing their views, their experiences in the field, and the solutions they have tested to develop new action frameworks. It is less a matter of devoting legal monitoring seminars than of establishing a real forum for normative creativity at the service of joint management procedures.
Fundamentally multidisciplinary and based on field experience, we bet that this collective dynamic of writing the administrative law of the commons could well reconcile more than one with the law!
Louise Guillot, project manager at the 27th Region
Olivier Jaspart, legal advisor and promoter of the theory of administrative law of the commons (see his blog)
Xavier Perrin, Director of “Communs” project at the City of Grenoble
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Find the notes of the legal hackathon of September 25th here