Governing the commons in the era of decodification and self-responsible societies : Elinor Ostrom's theory and the challenges for legal science

摘要

Active participation of the members of communities in the rule-making and rule-following processes is one of the main factors in effective management of the commons. However, these idea seems to be much broader. In fact it is not only present in the political economy, but also in the realm of law – for sure in the roots of our Western tradition it is also the Roman concept.udE. Ostrom observed in action the division between formal law and working rules. „When the mandates from relevant laws and official regulations are deemed impractical or improper, individuals may devise their own working rules that assign de facto rights and duties that are contrary to the de jure rights and duties”.udThere is a challenge for standard system of jurisdiction and formalized courts. Equitable and fair solutions are possible to discover by cooperating societies. The problem is how to provide the sphere of justice – public place to resolve conflicts without high costs and pending a decision of the court for a long time; Increasing popularity of negotiations and arbitrations, alternative dispute resolution (ADR) is not only the sign of searching for economically effective solutions. These phenomena also shows that the problem lies not in deciding what is equitable and fair – that is understandable for everyone. The problem lies in finding the trustworthy people who can provide fast and justified judgement that respects the governing principles of society. The problem lies in the feeling of uncertainty and lack of security due to complicated and enormously expanded legal system, legal rules and acts.udThe engagement of people and every person in the process of rule-making and rule-following seems to be a cross-disciplinary idea. It deals with creation of circumstances for development for an individual and community through self-governance, bottom-up approach towards legal rules, which will help put in the center human development that enables anyone to take part in the social life. E. Ostrom's research revealed that community is capable to discover and follow equitable rules. Decentralized legal systems and systems of jurisdiction enables community to self-govern and develop responsible societies.