Page 128 - Supplemento 2-2016 (ENG)

Prof. Paolo maddalena

“Collective ownership of the territory” was always connected with
“sovereignty”, in the sense that it was always part of the “sum of sovereign
powers” which, as we all know, lies with the people in a democracy. This con-
nection between “territory” and “sovereignty” was shattered by the bourgeois
Napoleonic restoration and the civil code of 1804, inspired by Tomalis, and
the principle “Empire to the sovereign, property to the private party”. Private
property then became an original, inviolable right and the idea of collective
ownership was strongly opposed. This thought, such an ill-omen for collecti-
ve interests, however, deeply penetrated the collective consciousness and still
influences civil law systems, even today, under the pressure of economical
neo-liberalism and, as has been seen, the modern theory of “common
goods”.

But our republican Constitution finally arrived to put everything right, on
the one hand, giving life back to “collective ownership” and, on the other hand,
declaring the legal subordination of private ownership to the people’s collective
ownership of the territory.

The first line of article 42 states that “Ownership is public and private”.
Inherent to the adjective “public”, as Massimo Severo Giannini clearly obser-
ved, is the “collective ownership of public land”, into which, after the 2011 sen-
tences of the Supreme Court of Cassation on the fishing areas of the Veneto
lagoon, landscape and territory must also be inserted, although not formally
listed in a legislative provision.

Some authors argue that the phrase “ownership is public and private”
means that assets always come under the category of private ownership, the
distinction lying in the subject to which it belongs, which could be a public or
private subject. This objection obviously lacks consistency since the distinction
in words, as has already been stated authoritatively by Massimo Severo
Giannini, the most influential expert in administrative law in the twentieth cen-
tury, regards the different system of ownership and not the relationship of
belonging to the subject. Furthermore, it must be noted that the first line of
the article in question goes on to state that “economical assets (that is, those
responding to the concept of marketability and therefore of private ownership)
belong to the State, institutions or private parties.” If one were to accept what

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