Bene(fit) societario o comune? Riflessioni sul quarto settore

Recent legislative measures aimed at incentivising sustainable business – and thereby the «fourth sector» – have largely relied on promotional regulatory instruments. This is indeed the nature of the initiatives supporting the development of activities of social interest, the legal regime governing benefit corporations, the legislation addressed to various types of innovative enterprises, and, likewise, at least some measures falling within the European Union’s protection of sustainability objectives stricto sensu. In all cases, moreover, this is subject-based regulation, which has saturated almost every conceivable area of possible legislative reform and multiplied the available options in favour of choosing among legal forms suited to meritorious entrepreneurial activities. A for-profit company, by contrast, is not permitted to pursue activities serving common goods in the proper sense; nor are objective constraints on alienability or disposability of goods of the same nature – that is, technically «commons» – provided for in any case. In this contribution, we reflect on the usefulness of persisting with promotional regulatory policies as hitherto applied in Italy, both in the third sector and in the for-profit market, and ask whether greater rewards might not be achieved through policies which rather than subjectively over-regulating the legal forms available to meritorious entrepreneurs, delimit certain areas and objects of activity by qualifying them as (entrepreneurial) commons in the proper sense.