Page 127 - Supplemento 2-2016 (ENG)

Tackling Environmental Crime throUgh standardized Methodologies

ging that is needed today to safeguard the environment, a type of “inclusive”
belonging called “collective ownership”, clearly in opposition to the destructive
and exclusive “ private ownership”; c) the concept of “popular sovereignty”, in
the sense that the “sum of the powers” to regulate civil life was originally given
to the people, with the consequence, not to be underestimated, that the “belon-
ging” of the territory, that is “collective ownership” of the territory itself, was
among these powers, a type of “original”, “inviolable” and “sovereign” owner-
ship.

This is confirmed by the fact that to “cede” loose rights of the “belon-
ging” of parts of the sovereign territory ( first “mancipium” was referred to
and then “possessio”), to private persons, a “lex centuriata” was required, a
solemn manifestation of the will of the people themselves, following the origi-
nally Etruscan solemn ceremony of the “divisio et adsignatio agrorum”, on the
basis of what had already happened under Numa Pomplio, giving two iugera a
head to the Patres familiarum through the “divisio” of the land, leaving most
of it for common use of the cives for the grazing of their flocks and herds, the
so-called “ager compasccuus”.

One can only speak about real “private ownership” in the modern sense
of the word from the dawning of the 1st century B.C, when only after long
and tormented reflection on case law “dominium ex iure Quiritium” was intro-
duced. It has, therefore, been shown that “collective ownership” in Rome pre-
ceded “private ownership “ by seven centuries and, above all, that forms very
vaguely similar to our private ownership were possible through the “ceding” of
collective ownership of parts of the territory to single individuals, as the result
of a law, that is the result of a clear manifestation of the will of the People
themselves.

This concept was further refined in the Middle Ages when, on the passing
of sovereignty from the people to the Emperor and then to the King, a “domi-
nium eminens” was recognized for the latter, also for farm lands given to single
individuals, considered subject to a “dominium utile” by the farmer. Essentially,
the principle was stated that the Sovereign had the right to a sort of “super-
ownership”, as Carl Schmitt named it, on the basis of which he could revoke
the “dominium utile” granted to the private party at any time.

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