10.1007@978 981 13 7189 9

Paul Babie · Jessica Viven-Wilksch
Editors
Léon Duguit
and the Social
Obligation Norm
of Property
A Translation and Global Exploration
Léon Duguit and the Social Obligation Norm
of Property
Portrait illustration of Léon Duguit by Nigel Williams © 2018. Reproduced with permission
Paul Babie Jessica Viven-Wilksch
•
Editors
Léon Duguit and the Social

Obligation Norm of Property
A Translation and Global Exploration
123
Editors
Paul Babie Jessica Viven-Wilksch
Adelaide Law School Adelaide Law School
The University of Adelaide The University of Adelaide
Adelaide, SA, Australia Adelaide, SA, Australia
ISBN 978-981-13-7188-2 ISBN 978-981-13-7189-9 (eBook)

https://doi.org/10.1007/978-981-13-7189-9
Library of Congress Control Number: 2019934800
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To Our Families
Foreword
It is both a pleasure and a privilege to contribute in a small way to this book on the
global influence of Leon Duguit’s deeply original property theory. I first encoun-
tered Duguit’s work while a graduate student at the Yale Law School, researching
the idea of property and later the idea of abuse of right. It remains today as fresh and
alluring as it was then. As the chapters in this book reveal, Duguit accounts for
property as a social function, something very close to an office that its holder
discharges. In this, Duguit took aim at the then-dominant Enlightenment view that
property is an extension of the person, a right that more fully enables an individ-
ual’s expression of will. In this Enlightenment tradition, the individual’s personal
claim of ‘mine, not yours’ is a defining feature of property. For Duguit, by contrast,
property was not organised around the relationship of the right to its subject (sujet
de droit) in this way; rather, it is an objective right defined wholly by reference to
its social purpose. Duguit, ever the realist, did not deny that property enabled
owners to act self-servingly, but he derived even the private powers of owners from
the social function of property: owners use their powers to see to their own needs
and interests because it is in society’s interest that they do so (and only to the extent
that it remains in society’s interest that they do so). Duguit’s brilliant and strikingly
simple claim, that a property right is abused when it is not exercised in accordance
with the purpose for which it is conferred, follows from his account of property as
an objective right.
This book reveals how much we still stand to gain by thinking through social
conflict about property in light of Duguit’s insights, some but not all of which were
absorbed by the legal realists throughout the twentieth century. In the Canadian
common law system, there are echoes of Duguit’s thinking about property in Chief
Justice Bora Laskin’s famous dissent in Harrison v Carswell (1976) 2 SCR 200. In
that case, the owner of a shopping centre sued a picketing employee of one of his
tenants for trespass after the employee refused to leave a private sidewalk within the
boundaries of the mall owner’s land. Chief Justice Laskin proposed to understand
trespass, as an unjustified (as opposed to the broader category of unauthorised)
boundary crossing. In Laskin CJ’s view, it simply was not within the owner’s right
to exclude the employee if the employee’s presence advanced a socially valuable
vii
viii Foreword
purpose (viz. healthy labour relations). For Laskin CJ, as for Duguit, social pur-
poses were not in conflict with an otherwise absolute private right. Rather, he took
the view that property by its nature is inherently a purposive right. Chief Justice
Laskin followed in Duguit’s footsteps by concluding that in using his right to
exclude in a manner inconsistent with its purpose, the mall owner had abused his
right. Pointing to ‘the relativity of rights involving advertence to social purpose as
well as to personal advantage,’ Laskin CJ wrote ‘it is the peaceful picketer who has
cause for complaint against interference with her, rather than the shopping centre
owner having a legally cognizable complaint’ (209).
Duguit’s work continues to raise more questions about the nature of property
rights than it settled. What does it make of—or presuppose about—us as persons
and as a community that property takes the shape it does? Do we get the property
rights we deserve, given the kind of community we have? Or do we get the kind of
community we have because of how we have structured property rights in law?
These are questions that ought to be front and centre in any theory of property.
Duguit was decidedly of the view that the idea of a property is not an a priori
concept but a matter of social fact that reflects the way that society has actually
evolved (for better or worse). Today, others favour the view that property, and the
social obligation norm at its core, is a force for bringing about valuable change to
society itself.
The chapters in this book confront the place of a social obligation norm in the
idea of property across many legal traditions. For Duguit, social solidarity at the
beginning of the twentieth century was such that he could say, confidently and with
approbation, that people had in fact assumed the role of cogs within a larger social
machine. Property’s nature as a social function followed from this view of com-
munity and the place of people in it and was a matter of fact simply calling for
recognition. Today, around the world, the matter is much more complicated. In the
chapters that follow, we are treated to a marvellous exposition of the different ways
in which a social obligation norm has taken hold in property thinking, with and
without a foothold in Duguit’s thick idea of community and solidarity.
Toronto, Canada Larissa Katz

Canada Research Chair
in Private Law Theory
Faculty of Law, University of Toronto
Acknowledgements
This book traces its origins to two seemingly unrelated events. The first was
Matthew Mirow’s publication in 2010 of ‘The Social-Obligation Norm of Property:
Duguit, Hayem, and Others’ in the Florida Journal of International Law, a fine piece
of scholarship which has done a great service to the common law world by
revealing Léon Duguit’s place in the emergence of the social-obligation norm of
property in the civil law tradition. The importance of this piece for those of us who
are non-civilians was to point out that the notion of social relations or obligation as
central to the meaning of property has been around much longer than we might
otherwise have assumed. The second event took place in 2015, when Jessica joined
the Adelaide Law School. Before long, we had begun discussing Duguit and the
need to bring greater attention to the importance of his work for property theory, in
both the civil and common law traditions. That, we thought, would involve both a
fresh English translation of Duguit’s sixth Buenos Aires lecture on property as a
social function and an assessment of the global reach of that concept in the close to
a century since it was delivered. So we began; the project which followed culmi-
nates now in this edited collection drawing together leading international scholars
whose interest is either Duguit, the social obligation norm of property, or both.
Jessica’s English translation of Duguit’s lecture, the first in close to a century,
provides our focal point of the book.
Of course, we could not have completed this project without the support of a
number of others. Stephen Jones at Springer was encouraging from the outset;
Lucie Bartonek continued to be so following Stephen’s departure from Springer.
We are immensely grateful to: James Morgan (LLB, Adelaide, 2018) and Kyriaco
Nikias (LLB, Adelaide, 2019) for research, editorial, and general assistance; Nigel
Williams, for the stunning portrait of Léon Duguit; and, for permission to republish
Daniel Bonilla, Liberalism and Property in Colombia: Property as a Right and
Property as a Social Function, 80 Fordham Law Review 1135 (2011), Thomas
Ankersen and Thomas Ruppert, Tierra y Libertad: The Social Function Doctrine
and Land Reform in Latin America, 19 Tulane Environmental Law Journal 69
(2006), and the sixth Buenos Aires lecture of Léon Duguit in Les transformations
ix
x Acknowledgements
générales du droit privé depuis le Code Napoléon (Paris, 1999, La Mémoire du

Droit, réimpression de la 2e éd. de 1920 chez Félix Alcan); and parts of Paul Babie,
Sovereignty as Governance: An Organising Theme for Australian Property Law,
36(3) University of New South Wales Law Journal 1075 (2013), and Paul Babie,
Climate Change is Eco-Slavery: A Climate Future of Australian Property Law, 43
Monash University Law Review 35 (2017). Our colleagues at the Adelaide Law
School, especially Dean John Williams, Dean Suzanne Le Mire, and Dean Melissa
de Zwart, provided invaluable assistance and advice at various stages.
Jessica expresses her sincere gratitude to Paul for his guidance throughout the
journey of this project and the making of this collection and to her husband whose
support is invaluable.
Paul expresses deep gratitude to Jessica, for making this project happen, and to
Rachael, Catherine, and Luke, without whose kindness, generosity and patience he
could not have completed this book.
Adelaide, Australia Jessica Viven-Wilksch

August 2019 Paul Babie
Translator’s Note
When Paul first approached me with the idea of translating Leon Duguit, I was both
flattered and anxious. After reading Les transformations générales du droit privé,
and identifying the sixth lecture in which Duguit brings the ideas advanced in the
remainder of the lectures on private law and its transformation, I was ready to tackle
the challenge. I offer here some reflections on the experience.
At the outset, I read some of his works as well as essays on his life to try to
capture his mind and thought. The English lecture in this edited collection is the
translation of the final lecture given by Leon Duguit in Buenos Aires in 1911.
It was therefore important to me to ensure that the translation reflected the
language and style of Duguit. It is well understood that language is deeply attached
to the culture and therefore the identity of a society (Cao 2010, 192). Any trans-
lation needs to take into consideration the different meanings that could be attached
to a similar word. I have been deeply aware of the so-called faux amis (false friends
—words having an identical spelling but having a different meaning) very early in
my English studies. To take a simple example, a lecture in English means a
conference while une lecture means a reading.
Different situations require different intonation and style. One uses a more
informal style when speaking to a friend compared to that of writing a scholarly
paper. The lecture here translated was a lecture given in front of an audience. This
means that the French version is quite conversational, regularly punctuated with
interjections to the audience, even though it was delivered orally. I tried to reflect
this in the English translation to convey that ‘relaxed style’. This was also a trait a
characteristic of Duguit’s writings (Laborde-Lacoste 1959, 100). In fact throughout
the lectures, it is easy to imagine listening to Duguit and his voice, described as
‘high pitched, … striking, biting, direct, demonstrative, captivating, endearing’
(Laborde-Lacoste 1959, 98).
However, language is not static. While it represents the society, its dynamic
nature allows it to evolve with that society. In translating Duguit’s lecture, I was
aware not only of the style of language used: conversational due to its oral delivery
xi
xii Translator’s Note
but also the early twentieth century date of the lecture. It was clear that some of the
concepts and sentences reflected clearly the state of the world at the time. I was
aware of this issue throughout the translation. I restrained myself from modernising
the language. While this means that some sentences are harder to grasp upon first
reading, they reflect the challenges a French reader would also face when reading
the lecture. I did not consider it my place to change the words of Duguit to make it
more readable today. Throughout this exercise therefore, I endeavoured to keep his
style without making it impossible for contributors to this collection to understand
its meaning. This meant making a few changes in both vocabulary and sentence
structure where mandated by the English language.
An added difficulty here was the technicality of the legal language used. Indeed,
not only is language deeply attached to the culture of a society and its identity, but
so is the law of a legal system. Therefore, any translation of a legal text is likely to
be complex and difficult (Cao 2010, 191). Legal translation is a ‘type of specialist or
technical translation’ (Cao 2010, 191). It involves going back and forth between
two languages, two legal systems, and two cultures. This becomes increasingly
problematic in the sense that there is no equivalent terminology between languages.
Not only does this translation reflect the understanding of both legal French and
legal English, it also goes further by reflecting the divide between two legal tra-
ditions: civil law and common law, respectively. Any legal language is very
technical and each word has a determined meaning, each concept a set of bound-
aries. Duguit, being a French legal scholar, operated within the civil law’s per-
spective on different legal matters.
While translations can be quite liberal and reflect the choices made by the
translator, they are not creative writing. Rather, it must be ‘a matter of legal con-
sistency and legal certainty, and hence of conformity to legal sources and dis-
courses, rather than a matter of individual preferences’ (Ramos 2015, 14). The
opinion is not shared by all who argue that the translator is given some latitude and
any fixation on linguistic fidelity or conceptual equivalence misses the overarching
point of legal translation. As long as the meaning is conveyed and the interpretation
by the translator does not taint the message of the original writer, the questions
become whether this matters. I have included both my translation and the original
translation for your own perusal. This is clearly apparent in the translation of
August Comte’s paragraph reproduced in Duguit’s lecture. There, I have included
the official translation, my translation and another translation prepared by Layton.
I will leave the final assessment of how well I have succeeded in this task to the
reader.
To reflect the historical context of the times and the particular thought of Duguit
through his choice of words, I have attempted to remain as close to his ideas as I
could. Therefore, the lecture opens with ‘Gentlemen’ and the sentences are
sometimes a little harder to read than they would have been to listen to. Where
Duguit only quoted parts of laws that advanced his argument, I have noted in
footnotes where the complete source may be found.
Translator’s Note xiii
Yet, due to the lack of complete adequacy of the terminology, I have had to
make changes to ensure the lecture will be understood by an English audience. The
Code Napoleon became the Napoleonic Code; Intangible became sacrosanct;
affecter became to allocate; détenir became to hold; destination became
purpose/telos. Where possible and subject of changes I note in the footnotes, the
punctuation was left as is. The word conception in French was kept as it is found in
English. Some of the most obvious changes are mostly in relation to the termi-
nology. He used social where I use socialist; He used application where I use
allocation; and he used definite, I use defined.
One issue was to decide whether ‘propriété fonction sociale’ should be translated
as ‘social function of property’ or ‘social function of ownership’. It was decided to
keep the expression in French to allow the ambiguity, that exists in French, to
subsist and continue using propriété in French. This will provide the opportunity
for contributors to challenge what propriété means (property or ownership) within
their own contributions. The notion of sujet de droit is another element that will
remain in French in the translation. This will give an opportunity to contributors to
play with the possible translation of the expression as subject of law/or subject of
rights. The word affectation in French has been translated to the English equivalent
of affectation. This gives contributors the opportunity to explore the meaning of this
concept within their own jurisdictions and in the introduction.
The first English translation of the sixth lecture was published in 1918 by
Layton. It is clear that the translation was obviously made for an English-speaking
audience who may not be able to read the text in the original French. With this in
mind, the translator took a liberal approach to the translation and inserted para-
graphs from the appendices referred to by Duguit in his lecture. However, by not
inserting these notions himself, one could argue that Duguit understood that his
train of thought could be followed without recourse to the appendices—only ref-
erenced for the scholar willing to know more. Layton also removed paragraphs that
did not add to the content of the lecture but were merely reflecting the context in
which the lecture was given. But these paragraphs provide information as to the
aspirations of Duguit and the historical context of the lectures. These are the reasons
why the lecture translated here represents the sixth lecture in its entirety but does
not provide more than this lecture.
Within the text itself, there are differences between Layton’s translation and
mine. He added titles to paragraphs where there were none in Duguit’s chapter and
changed turns of phrases presumably to make them more readable. However, as I
have noted I take the position that this detracts for the experience.
The translation does not have to rely solely on the perceptions of the translator.
‘Any action taken to improve the quality of translations as products’ (Ramos 2015,
13) is to enhance the quality assurance process and ultimately the quality of the
output. This was key in ensuring the translation would be a true reflection of
Duguit’s work as well as be readable and understandable. Once I wrote the first
draft, Paul and I worked on the draft so as to ensure that the translation would make
sense to an English-speaking audience and the translated terms would reflect if not
identical at least very similar notions in English when compared to the French.
xiv Translator’s Note
However, I resisted making any change in terms that could lead to a different tone
or meaning. Taken together, my own revisions, working with Paul, and the input
of the contributors to this book, I hope to have replicated in English the tone used
by Duguit in French as well as remaining true to his ideas.
Adelaide, Australia Jessica Viven-Wilksch

August 2019 Lecturer
References
Cao D (2010) Legal translation. In: Gambier Y, van Doorslaer L (eds) Handbook of translation
studies, vol 1. John Benjamins Publishing Company, Amsterdam, p 191
Duguit L (1918) Changes of principle in the field of liberty, contract, liability, and property. In:
Various Authors (eds) The progress of continental law in the nineteenth century. The
continental legal history series, vol xi. Augustus M Kelley Publishers, Boston, p 65
Laborde-Lacoste M (1959) ‘La vie et la Personnalité de Léon Duguit’ Congrès commémoratif du
centenaire de la naissance du Doyen Léon Duguit. Revue juridique et économique du
Sud-Ouest 34:93–100
Ramos FP (2015) Quality assurance in legal translation: evaluating process, competence and
product in the pursuit of adequacy. Int J Semiot Law—Revue Int Sémiotique juridique
28:11–30
Contents
1 Léon Duguit and the Propriété Function Sociale . . . . . . . . . . . . . . . 1

Paul Babie and Jessica Viven-Wilksch
Part I English Translation of Léon Duguit’s 1920 Buenos Aires

Lecture ‘propriété fonction sociale’ by Jessica Viven-Wilksch
2 Translation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Jessica Viven-Wilksch
Part II The Importance of the Social Function of Property—Europe

3 The Importance of the Social Function of Property—France . . . . . 65
Alexandre Deroche
4 Duguit and the German Property Law Tradition . . . . . . . . . . . . . . 87
Murray Raff
5 The “Social Function of Property” in German Law . . . . . . . . . . . . 111
Martin Löhnig
6 The Importance of the Social Function of Property—Norway . . . . 123
Geir Stenseth
7 The Social Function of Property: Russia . . . . . . . . . . . . . . . . . . . . . 143
Katlijn Malfliet
Part III The Importance of the Social Function of Property—

South America
8 Liberalism and Property in Colombia: Property as a Right
and Property as a Social Function . . . . . . . . . . . . . . . . . . . . . . . . . 171
Daniel Bonilla
xv
xvi Contents
9 Tierra y Libertad: The Social Function Doctrine and Land

Reform in Latin America . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
Thomas T. Ankersen and Thomas Ruppert
10 A Curious Doctrinal Marriage: the Social Function of Property
and the Right to the City in Brazil . . . . . . . . . . . . . . . . . . . . . . . . . 253
Colin Crawford
11 Léon Duguit and the Social Function of Property in Argentina . . . 267
M. C. Mirow
Part IV The Importance of the Social Function of Property—

North America
12 The Social Function of Property, Credit, and Capital
in the United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289
Christopher K. Odinet
13 Duguit Appropriated: Trusts and Collective Ownership
in Québec . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311
Gaële Gidrol-Mistral and Alexandra Popovici
Part V The Importance of the Social Function of Property—

Australia, Africa and Asia
14 The Norm of Property’s Social Function: A Chinese Perspective . . . 331
Lei Chen, Andrew Michalek and Jia Wang
15 Can Social Property Survive Under Neoliberalism?:
A View from Australia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355
Peter D. Burdon and James G. Stewart
16 Between Custom and Colony: Social-Norm Based Property Law
in South Africa’s Post-constitutional “no-Man’s Land” . . . . . . . . . 371
Hanri Mostert with Cheri-Leigh Young
Afterword: Property’s Form and Function . . . . . . . . . . . . . . . . . . . . . . . . 403

Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 417
Editors and Contributors
About the Editors
Paul Babie is Adelaide Law School Professor of of Property Theory and Law and
Associate Dean of Law (International) in The University of Adelaide. He holds a
BA in sociology from the University of Calgary, a BThSt from Flinders University,
a LLB from the University of Alberta, a LLM from the University of Melbourne,
and a DPhil in law from the University of Oxford. He is a Barrister and Solicitor
(inactive) of the Bar of Alberta (Canada), and an Associate Member of the Law
Society of South Australia (of which he is a Member of the Property Law
Committee). His primary research interests include private law theory, property
theory, property law, and liberation theology. He teaches property law, property
theory, law and religion, and Roman law. He was elected a Fellow of the Australian
Academy of Law in 2017.
Jessica Viven-Wilksch is a Lecturer in the Adelaide Law School, The University

of Adelaide. She has studied in France, Ireland, Germany and Australia and is
passionate about comparative law. Her main research interests are comparative
studies and commercial law. Her PhD thesis made a comparative analysis of the
concept of good faith in the contract laws of Australia and the European Union.
Contributors
Thomas T. Ankersen University of Florida Joint Program in Environmental Law

and Conservation Clinic, Gainesville, FL, USA
Paul Babie Adelaide Law School, The University of Adelaide, Adelaide, SA,
Australia
Daniel Bonilla University of the Andes School of Law, Bogotá, Colombia
xvii
xviii Editors and Contributors
Peter D. Burdon Adelaide Law School, The University of Adelaide, Adelaide,

SA, Australia
Lei Chen School of Law, City University of Hong Kong, Kowloon Tong, Hong
Kong
Colin Crawford Louis D. Brandeis School of Law, University of Louisville,
Louisville, KY, USA
Alexandre Deroche Tours, France
Gaële Gidrol-Mistral Département des sciences juridiques, Faculté de science
politique et de droit, Université du Québec à Montréal, Montreal, QC, Canada
Martin Löhnig Regensburg, Germany
Katlijn Malfliet Faculty of Social Sciences, Leuven Institute for International and
European Studies (LINES), KU Leuven, Louvain, Belgium
Andrew Michalek Johns Hopkins University, Baltimore, MD, USA
M. C. Mirow Florida International University College of Law, Miami, FL, USA
Hanri Mostert University of Cape Town, Cape Town, South Africa
Christopher K. Odinet The University of Oklahoma, Norman, OK, USA
Alexandra Popovici Faculté de droit, Université de Sherbrooke, Sherbrooke,
Québec, Canada
Murray Raff University of Canberra, Canberra, ACT, Australia
Thomas Ruppert Florida Sea Grant College Program, Gainesville, FL, USA
Geir Stenseth Faculty of Law, Department of Private Law, University of Oslo,
Oslo, Norway
James G. Stewart Adelaide Law School, The University of Adelaide, Adelaide,
SA, Australia
Jessica Viven-Wilksch Adelaide Law School, The University of Adelaide,
Adelaide, SA, Australia
Jia Wang Hong Kong Polytechnic University, Hung Hom, Hong Kong
Cheri-Leigh Young University of Cape Town, Cape Town, South Africa
Chapter 1
Léon Duguit and the Propriété Function
Sociale
Paul Babie and Jessica Viven-Wilksch
Abstract The dominant modern conception of private property has been and is lib-
eral. Liberalism concerns itself with promoting and protecting freedom of choice
for the individual—natural or legal—and groups of them. Private property is liber-
alism’s vehicle for achieving that objective—conferring choice—in the allocation
and control of goods and resources—natural or manufactured, tangible or intangi-
ble—among individuals. Yet the last 35 years, and longer, depending on how one
understands the scholarship, stand witness to an explosion of property theory liter-
ature, much of it focusing upon what has come to be known as property as social
relations or the progressive property movement. This ‘social shift’ recognises the
importance of community interests in understanding both the concept of property
and its invocation in real world legal systems. To a great extent, then, and depending
upon how one looks at it, the property as social relations or progressive property view
seems either an entirely American phenomenon or, whatever the phenomenon might
be, it has been appropriated by American theorists. Seldom in this modern theorising,
however, do we see mentioned the name of Léon Duguit. Yet, in the sixth of a series
of lectures given in 1911 in Buenos Aires, Duguit coined the now axiomatic French
phrase ‘propriété function sociale’ or the social function of property, meaning that
rather than a right, property is a social function. And while the social function of
property has come to have an importance, not only in France, but also in the civil
law tradition itself, and while this notion has had wide, if un-attributed and seldom
regarded, influence in the common law tradition and theory of property, Duguit’s lec-
Parts of this chapter are republished with the kind permission of the University of New South Wales
Law Journal and of the Monash University Law Review (Paul Babie, Sovereignty as Governance:
An Organising Theme for Australian Property Law, 36(3) University of New South Wales Law Jour-
nal 1075 (2013), and Paul Babie, Climate Change is Eco-Slavery: A Climate Future of Australian
Property Law, 43 Monash University Law Review 35 (2017)). (http://www.unswlawjournal.unsw.
edu.au/wp-content/uploads/2017/09/36-3-1.pdf) (https://www.monash.edu/__data/assets/pdf_file/
0007/1092670/02_Babie.pdf).
P. Babie (B) · J. Viven-Wilksch (B)

Adelaide Law School, The University of Adelaide, North Terrace, Adelaide, SA, Australia
e-mail: paul.babie@adelaide.edu.au - jessica.viven-wilksch@adelaide.edu.au
© Springer Nature Singapore Pte Ltd. 2019 1

P. Babie and J. Viven-Wilksch (eds.), Léon Duguit and the Social Obligation
Norm of Property, https://doi.org/10.1007/978-981-13-7189-9_1
2 P. Babie and J. Viven-Wilksch
ture has rarely been translated into English into English and even more infrequently
adverted to by the property as social relations/progressive property movements.
Keywords Legal change · Absolute right · Positivism · Duguit · Social obligation

norm · Property theory · Progressive property
1.1 Legal Realism, Social Relations, and Progressive

Property
The dominant modern conception of private property has been and is liberal.1 Lib-
eralism concerns itself with promoting and protecting freedom of choice for the
individual—natural or legal—and groups of them (Kalyvas and Katznelson 2008;
Kahn 2005, 30). Private property is liberalism’s vehicle for achieving that objective—
conferring choice—in the allocation and control of goods and resources—natural or
manufactured, tangible or intangible—among individuals (Waldron 1988, 31–40).
Yet the last 35 years, and longer, depending on how one understands the scholarship,
stand witness to an explosion of property theory literature, much of it focussing upon
what has come to be known as property as social relations, beginning with the work
of Joseph William Singer in the early to mid-1980s (Singer 1982, 1988). This ‘social
shift’ recognises the importance of community interests in understanding both the
concept of property and its invocation in real world legal systems. And the commu-
nity matters, both for the common future which we all face in global challenges such
as climate change (The Economist 2017), and for the political role it plays, especially
with the increasing influence of social media in mobilising its power (Kane 2017).
Interestingly, at least in the English-speaking west, we can trace the origins of
both strands of thinking—liberal absolutism and social relations—to the same two
sources. First, the liberal conception is often traced to Sir William Blackstone’s
Second Book of the Commentaries on the Laws of England:
There is nothing which so generally strikes the imagination, and engages the affections of
mankind, as the right of property; or that sole and despotic dominion which one man claims
and exercises over the external things of the world, in total exclusion of the right of any other
individual in the universe (Blackstone 1979b, 2).
Jeremy Bentham, who first noted the importance of law to the structure of private
property, provides the second source. Rather than being a natural right, Bentham
wrote, ‘…property and law are born and must die together. Before the laws there
was no property; take away the laws, all property ceases’ (Bentham 1802, 113).
Whatever private property is, law creates, confers and protects it. Together, these
two sources recognise the dual fact of liberal choice and that it is law, a legal system,
that creates, confers and protects that choice in the hands of its holder.
1 Forthe history of the liberal conception of property see: Waldron (1988), Munzer (1990), Radin
(1993).
1 Léon Duguit and the Propriété Function Sociale 3
Of course, no real-world system of private property ever has been absolute;2

property is nothing like the absolutist picture painted by an uncritical acceptance
of Blackstone’s pithy quotation.3 And, what is more, Blackstone not only knew
it, but spent the remainder of the Second Book of the Commentaries explaining
why. Blackstone, the ‘avatar of absolut[ism]’ (Schorr 2009, Abstract, as cited in
Dudziak 2007), wrote that private property consists of the ‘…free use, enjoyment,
and disposal of all [a person’s] acquisitions, without any control or diminution, save
only by the laws of the land’ (Blackstone 1979a, 138).4 As Robert Burns concluded
in his seminal work on the topic, ‘[a]lthough [Blackstone] calls [private] property an
“absolute” right, he does not mean that government—or at least the legislature—is
without power to remold the historically conditioned and socially recognised rights
of the individual in property’ (Burns 1985, 69). Bentham drew attention to the role
of government. And so, what we have today is an understanding of private property
which begins with liberal choice conferred by the state, but in so doing, the state
limits what otherwise appears to be the absoluteness of private property: the liberal
position is nothing more than ‘…a simple and non-social…’ (Alexander 1997, 321,
emphasis added) beginning. Private property, while liberal choice established and
protected by law, has its origins in social relationships mediated by the state.
Beginning around the turn of the 20th century, the American legal realists gave
shape to the social view which emerged from the liberal conception. In two seminal
articles, Wesley Newcomb Hohfeld captured, simplified and systematised the com-
plexity first revealed by Blackstone in ‘jural opposites’, a novel means of describing
legal rights (Hohfeld 1913, 1917, 1919, 1923). By identifying four basic types of
legal right—rights, privileges, powers, and immunities—Hohfeld’s ‘jural relations’
offered a useful way of understanding and analysing private property. Yet, because it
was not specifically a theory of private property, Hohfeld’s theory of rights left unre-
solved the identification of the specific rights that constitute the liberal conception.
That task was taken up by Anthony Honoré, who provided the foundation of what
has today become the modern liberal conception of private property as a bundle of
legal rights (or relationships) (Honoré 1961): 11 ‘incidents’ of ownership,5 which
include not only the rights typically associated with property—use, exclusivity and
alienability—but also the limitations that any fully-fledged legal system imposes on
2 There has yet to be any example in the history of human society where William Blackstone’s ‘sole
and despotic dominion’ described the on-the-ground distribution of resources or social wealth; see
Rose 1994, 603. Even the Romans—to whom the notion of absolute dominium in things is often
attributed—did not in practice recognise such a possibility: Getzler 1998, 81–106.
3 A notable exception to the standard use of Blackstone is found in Schorr 2009.
4 Blackstone went on to explain the many ways in which fetters were placed upon private property
in 18th century England: Blackstone (1979a, b, c, 212–215, 217–218). But Book II itself was an
account of English real property law that ‘…took pains to point out both that this right of “property
in its highest degree [the fee simple]” was always “held of some superior, on condition of rendering
him service; in which superior or ultimate property of the land resides”, and that lesser interests
were frequently vested in some other person or persons….Not only did “absolute” ownership not
exist in England, it was hardly discussed even as a mythological ideal type.’: Schorr 2009, 3–4.
5 Possession, use, manage, income, capital, security, transmissibility and absence of term, duty to
prevent harm, liability to execution, and the incident of residuarity: Honoré (1961).
the rights conferred by property (Honoré 1961, 108–134). This combination of jural
opposites with the 11 standard incidents conceptually freed Hohfeld’s analysis so as
to disaggregate the previously undifferentiated Blackstonian model.6 This produced
what has come to be known as the ‘sophisticated’ or ‘legal’7 ‘bundle of rights’ picture
or metaphor (Underkuffler 2003, 13; Becker 1977, 11–14, 21–22). Perhaps the best
summary of this position comes from one of the later American legal realists, Felix
Cohen, who wrote, echoing Bentham, that:
[p]rivate property is a relationship among human beings such that the so-called owner can
exclude others from certain activities or permit others to engage in those activities and in
either case secure the assistance of the law in carrying out [that] decision (Cohen 1954, 373,
emphasis added).
According to the inheritors of the realist tradition the property as social relations
scholars of the late 20th and early 21st century8 the source, origin, and constitution
of private property is said to lie in relationships between people.9 Private property
is, in other words, a dynamic social construct, ‘…a cultural creation and a legal
conclusion’ (Baker 1986, 744). Rather than being acontextual, it flows from and has
meaning according to social context (Underkuffler 2003, 128; Harris 1996; Munzer
1990; Radin 1993, 9; Penner 1997; Waldron 1988)10 depending for its content on
the cultural, political and ideological beliefs of a particular society (Merrill 1998,
737–739).11
From this social understanding of property emerges the fact that the rights of
private property, whatever they are, however they are bundled, and by whomever
they are held, allow the holder to act in certain ways in relation to the rights of other
people or groups of them. This is typically expressed this way:
…[private] property [i]s a claim that other people ought to accede to the will of the owner,
which can be a person, a group, or some other entity. A specific property right amounts to the
decision making authority of the holder of that right (Baker 1986, 742–743; see also Singer
1988, 655, 1991, 2, 15–16, 2000a, 18–37, b, 134–139).
6 Some would say disintegrated (Grey 1980).

7 On the idea that rights are the background knowledge of modern property, see Ellickson (2006,
236–240).
8 Hohfeld’s thinking was subsequently taken up by Hale (1923), Cohen (1927), Hale (1943), Cohen
(1954).
Contemporary scholars, especially those of the Critical Legal Studies movement, who became
known as the property as social relations school, have extensively developed and expanded the early
realist work on property: see (Macpherson 1975, 104, 1978a, 1, b, 199; Nedelsky 1989, 1990, 1993;
Kennedy 1991; Singer 1982, 1988, 1991, 1992, 2000a, b, 2005; Singer and Beermann 1993; Rose
1994; Baker 1986; Underkuffler 1990, 2003).
9 Joseph William Singer, the modern exemplar of social relations, offers this succinct summary:
‘[p]roperty concerns legal relations among people regarding control and disposition of valued
resources. Note well: Property concerns relations among people, not relations between people
and things’ (Singer 2005, 2, footnote omitted, emphasis in original).
10 For more recent acceptance of the relevance of social context, see George (2005).
11 This can be traced to the seminal work of Grey (1980).
What does decisionmaking authority mean? Each of the rights conferred by private
property represents a choice permitting its holder to act upon a good or resource in
any way the holder sees fit. Typically described as ‘preference-satisfaction’, ‘self-
interest’, ‘self-seekingness’, ‘self-regarding acts’, or ‘setting an agenda’,12 the ability
to exercise rights as one sees fit means that ‘…the rules of [a] property institution are
premised on the assumption that, prima facie, [a] person is entirely free to do what
he will with his own, whether by way of use, abuse, or transfer’ (Harris 1996, 29).
Moreover, ‘…[h]e may also, within the terms of the relevant property institution,
defend any use or exercise of power by pointing out that, as owner, he was at liberty
to suit himself’ (Harris 1996, 31).
But it was another of the early American legal realists who captured decision-
making authority in a way that brought to light the true nature of the power which
property confers on its holder. In 1927, in a seminal and breathtaking piece of schol-
arship, Morris Cohen argued that the relationship between the person holding pri-
vate property and others was really the conferral of a form of ‘sovereignty’ on the
holder of the bundle (Cohen 1927, 8, emphasis added). In doing so, Cohen’s property
as sovereignty identified something in the simple, absolutist view of Blackstone’s
account of property that remains, in fact, very accurate: property is a grant of power,
a state-conferral upon individuals of the ability to control the use of goods and
resources according to personal tastes and preferences, and to exclude others from
any such use. Property, in short, is nothing less than a state grant of sovereignty to
the individual said to hold property (Cohen 1927).
There is much that fascinates in Cohen’s work: the public–private divide was, at the
time Cohen wrote—and it continues to remain so today—one of the fixed divisions of
the jural field, dating as far back as the Roman division between dominium—the rule
over things by the individual—and imperium—the rule over all individuals by the
prince (Cohen 1927, 8–9). Still, Cohen continued, while Austin cast serious doubt
on the classical distinction between public and private law (Austin 1832), some legal
traditions extant at, or emerging very nearly after, the time of the Roman law, such as
early Teutonic law, the law of the Anglo-Saxons, Franks, Visigoths, Lombards and
other tribes, and even feudal tenurial law, made no such distinction (Cohen 1927, 9).
The blurring of this divide, then, as far as property is concerned, has been with us
for quite some time.
As a tool for use in the analysis of property, however, the Roman distinction
between dominium and imperium retains its usefulness, notwithstanding the concep-
tual ‘blurring’ in the case of property. While both comprise a form of sovereignty,
the real distinction lies in who holds the power encapsulated by each. In the case
of property, dominium is the grant of power in the form of rights conferred by the
state upon the individual, of which there are three main types: those which protect
economic productivity, those which protect privacy, and those which protect social
12 This begins with John Stuart Mill’s ‘self-regarding act’ (Mill and Himmelfarb 1974). See espe-
cially: Singer 2005, 7–11; Alexander 1998, 699; Harris 1996, 29, 31, 105; Singer 2000b, 30; Katz
2008.
utility. In each case, the benefit of the right inures to the individual (Cohen 1927,
12). Cohen concludes that:
the law of property helps me directly only to exclude others from using the things which
it assigns to me. If then somebody else wants to use the food, the house, the land, or the
plow which the law calls mine, he has to get my consent. To the extent that these things are
necessary to the life of my neighbor, the law thus confers on me a power, limited but real, to
make him do what I want (Cohen 1927, 12).
And Cohen found, writing in 1927, that there were a number of areas where
the state was expanding this power, this sovereignty, this dominium conferred upon
individuals (Cohen 1927, 12). In expanding that power, Cohen argued, one must not
lose sight of the fact that dominium over things also constitutes imperium over people;
the greater the protection accorded to the individual, the greater the possibility that
choices exercised pursuant to that power will have consequences, both positive and
negative, for others. In short, concludes Cohen, in property ‘we have the essence of
what historically has constituted political sovereignty’ (Cohen 1927, 13).
Identifying this political sovereignty held by individuals, however, draws to our
attention the necessity to consider the other side of that equation: if the individ-
ual enjoys such power, what power has the state to stop individuals exercising the
sovereignty granted to them in ways that may harm the greater social good, or the
general welfare (Cohen 1927, 11)? Cohen argues, in order to avoid chance and anar-
chy, that the state should do quite a lot: ‘[t]his profound human need of controlling
and moderating our consumptive demands cannot be left to those whose dominant
interest is to stimulate such demands’ (Cohen 1927, 30). For ‘[n]o community can
view with indifference the exploitation of the needy by commercial greed’ (Cohen
1927, 23).
More recent property as social relations scholarship develops the early identifi-
cation by Cohen of the necessity of a state role in limiting the political sovereignty
conferred upon the liberal individual by private property. Regulation is law’s means
of mediating the relationships established by private property; to prevent the tyranny
of the individual over the community, the underlying social functions and relation-
ships of private property require monitoring and regulation of choice by correspond-
ing moral imperatives, duties and obligations (Lametti 1998; 2003, 346–348). Over
time, regulation preserves the social function of a private property right, whatever
it might be, within a context of relatedness, thus limiting potentially harmful out-
comes for others (Singer and Beerman 1993, 228). Social relations theorists note that
every system of private property is inherently limited by moral imperatives, duties
and obligations, imposed and enforced by law, so as to allow the holder of private
property to choose not only personal preferences but also so as to prevent outcomes
inimical to the legitimate interests of others (Singer 2000b, 204).13 Thus, while ‘[pri-
vate property]…initially appears to abhor obligation, …on reflection we can see that
it requires it. Indeed, it is the tension between [unfettered private property rights]
13 And see Honoré (1961), especially regarding the duty to prevent harm and the liability to execution.
Singer (2000b, 78–79), makes this point in relation to the United States’ system of private property,
although it can easily be extended to the legal system of any Western, capitalist, market economy.
and obligation that is the essence of [private] property’ (Singer 2000b, 204, emphasis
added). As Singer explains, if private property is inherently social and relational, and
serves inherently social purposes, then it is inherently moral:
Owners have obligations both to share their wealth with the dispossessed and to use their
[private] property in a way that is compatible with the interests of non-owners in being able
to enter the system to become owners…. All this means is that there is no core of [private]
property we can define that leaves owners free to ignore entirely the interests of others.
Owners have obligations; they have always had obligations. We can argue about what those
obligations should be, but no one can seriously argue that they should not exist (Singer
2000b, 18).
Since the late 2000s, the property as social relations model has morphed into
what has come to be called ‘progressive property’, which adopts the realist under-
standing of property as relational, its conferral of political sovereignty on its holders,
which must come with some limitation in the form of regulation imposed by the
state.14 In 2009, Gregory Alexander, Eduardo Peñalver, Joseph William Singer, and
Laura Underkuffler authored ‘A Statement of Progressive Property’, encompassing
the breadth and depth of the realist and social relations theorising about property that
has come before it (Alexander et al. 2009, 743–744):
1. Property operates as both an idea and an institution. The common conception of property
as protection of individual control over valued resources is both intuitively and legally
powerful. Sometimes the expression of this idea focuses on the right to exclude others
and sometimes on the free use of what one owns. This intuitively appealing conception
of property has been extremely influential in discussions of property rights in the United
States. However, internal tensions within this conception and the inevitable impacts of
one person’s property rights on others make it inadequate as the sole basis for resolving
property conflicts or for designing property institutions. For those tasks, we must look to
the underlying human values that property serves and the social relationships it shapes
and reflects.
2. Property implicates plural and incommensurable values.
2.1. Some of these values promote individual interests, wants, needs, desires, and pref-
erences. Some promote social interests, such as environmental stewardship, civic
responsibility, and aggregate wealth. Others govern human interaction to ensure
that people relate to each other with respect and dignity.
2.2. These values are not solely a matter of satisfying personal preferences. Values can
generate moral demands and obligations that underlie judgments about the interests
that the law should recognize as property entitlements.
2.3. Values promoted by property include life and human flourishing, the protection
of physical security, the ability to acquire knowledge and make choices, and the
freedom to live one’s life on one’s own terms. They also include wealth, happiness,
and other aspects of individual and social well-being.
2.4. The pursuit of these values implicates moral and political conceptions of just
social relationships, just distribution, and democracy. It requires virtue, particu-
larly humility, and attentiveness to the effects of claiming and exercising property
14 Consider, for instance, the collections of essays and attempts at summarising the very nature of
‘property theory’ found in Munzer (2001), Alexander and Peñalver (2010, 2012), Penner and Smith
(2013).
rights on others, including future generations, and on the natural environment and
the non-human world.
2.5. The plural values implicated by property are incommensurable. Because they relate
to qualitatively distinct aspects of human experience, they cannot be adequately
understood or analyzed through a single metric. Reducing such values as health,
friendship, human dignity, and environmental integrity to one common currency
distorts their intrinsic worth.
3. Choices about property entitlements are unavoidable, and, despite the incommensura-
bility of values, rational choice remains possible through reasoned deliberation. That
deliberation should include non-deductive, non-algorithmic reflection. It should be both
principled and contextual, and should draw upon critical judgment, tradition, experience,
and discernment.
4. Property confers power. It allocates scarce resources that are necessary for human life,
development, and dignity. Because of the equal value of each human being, property laws
should promote the ability of each person to obtain the material resources necessary for
full social and political participation.
5. Property enables and shapes community life. Property law can render relationships within
communities either exploitative and humiliating or liberating and ennobling. Property
law should establish the framework for a kind of social life appropriate to a free and
democratic society.
To a great extent, then, and depending upon how one looks at it, the property
as social relations or progressive property view seems either an entirely American
phenomenon, or whatever the phenomenon might be, it has been appropriated by
American theorists.15
Seldom in this modern theorising, however, do we see mentioned the name of
Léon Duguit. Yet, in the sixth of a series of lectures given in 1911 in Buenos Aires,
at least two years before Hohfeld first published the jural opposites, fully sixteen
years before Cohen wrote about property as sovereignty, and long before the social
relations and progressive property movements, Duguit coined the now axiomatic
French phrase ‘propriété function sociale’ or the social function of property (Duguit
2008, 147–178) meaning that ‘property is not a right; it is a social function’.16 And
while the social function of property has come to have an importance, not only in
France, but also in the civil law tradition itself, and while this notion has had wide, if
un-attributed and seldom regarded, influence in the common law tradition and theory
of property, Duguit’s lecture has rarely been translated into English (Register 1918,
44–52, 129–143 as reproduced in Wigmore and Kocourek 1923, 315); even more
infrequently has it been adverted to by the property as social relations/progressive
property movements.
This book therefore plays a seminal role in the ongoing development of social
relations/progressive property theory, as well as in the understanding of Duguit’s
importance to that development. It offers a refreshed English translation of Duguit’s
seminal lecture on property as background to a collection of essays from leading
15 One of the most innovative theories of property during those 35 years is perhaps that of Harris
(1996). Yet today it is hardly known and rarely cited.

16 ‘Mais la propriété n’est pas un droit; elle est une fonction sociale’ as cited in Mirow (2010, 191)
n 1.
international scholars asked to reflect upon Duguit and social obligation in contem-
porary property within their respective jurisdictions or traditions, both civilian and
common law. Before we turn to those contributions, however, here, in Part II, we
offer a brief outline of Duguit’s biography and the context surrounding the 1911
lecture; Part III examines the two themes in property scholarship which emerge from
Duguit’s sixth lecture—the theory of property, on the one hand, and the law of prop-
erty, on the other; and, Part IV presents a brief overview of the book. To begin, then,
who was Duguit and what can we learn from that sixth lecture in Buenos Aires?
1.2 Léon Duguit
This part provides a brief biography of Léon Duguit, and a discussion of the sixth
lecture delivered in Buenos Aires, and why it mattered for our contemporary under-
standing of property.
1.2.1 Biography
Léon Duguit was a prodigy. Born on 4 February 1859 in Libourne, France, the son
of a lawyer and winemaker (Malherbe 1996, 313), as a child, Duguit was ‘the model
of the perfect student, constantly cited in example’ (Malherbe 1996, 313), from an
early age ‘mak[ing] a clean sweep of all prizes’ (Blanquer and Milet 2011, 3, 12;
Laborde-Lacoste 1959, 97). Influenced and encouraged by a religious mother, Duguit
attended religious class and, as with studies temporal, was often first (Blanquer and
Milet 2011, 3, 12).17 Having obtained two baccalaureates, one in literature and one
in science (Malherbe 1996, 313), in 1876 Duguit moved to Bordeaux (a city to which
he would return as professor of law and later as the dean of the law faculty) for higher
education (Malherbe 1996, 313). By the end of his licence, he had completed two
theses, one in Roman law (de usufructu) and one in French law (on the assets of
communities). In 1882 a gold medal followed for two doctoral theses, one on Roman
law (theory of risks in stipulatio) and one on French law (conflict of statutes regarding
the form of civil acts) (Malherbe 1996, 313).
A 23-year old doctor, Duguit required an exemption due to age in order to sit
the competitive exam to become a university professor, finishing sixth and receiving
an aggregation (the necessary step to becoming a professor in France) (Malherbe
1996, 313). He began at Caen in 1883, teaching legal history, before returning to
Bordeaux to teach constitutional and administrative law (Laborde-Lacoste 1959,
97). Duguit would remain at Bordeaux until retirement, a prolific writer producing
more than 71 titles (Malherbe 1996, 313), known for extremely original thought
(Espagno 2013, 15), reflecting an upbringing influenced by both religion and science.
17 Like his mother, he would also engage in charitable activities (Laborde-Lacoste 1959, 108).
His colleagues and disciples described Duguit and ‘his energetic personality, his
revolutionary thinking, his tireless and varied activity’ (Delage 1959, 85).Bernardo
Sordi writes that:
Duguit was an innovator, a profound innovator. He was so regarding methodology, regarding
dialectic between philosophy and law, between sociology and legal science. He was so
regarding description and understanding of process of transformation that occupy all the
European reality during the First World War. He was like so in relation to general theory,
through a corrosive critique of the traditional foundations of law and of the state. He was
like so in relation to public law both constitutional and administrative. Without forgetting
private law and labour law both of which were also considered by his exceptional capacity
to observe and to read (Sordi 2011, 277).
And Nader Hakin summarises Duguit’s approach as follows:

on the one hand, the individualist conception of law must make way for a conception,
essentially socialist, and on the other hand, the legal system founded on a metaphysical
conception of subjective law be replaced by a new system founded on the observation of
the fact of social function imposing itself to individuals and groups. These two ideas are the
two faces of the same idea that lead Duguit to conclude on the decline of the ‘legal civilist
system’ (Hakin 2011, 84).
Even detractors recognised the power of Duguit’s thinking; Ripert, for instance,
acknowledged that Duguit had, with admirable clarity and logic, salvaged public
law from a proliferation of ancient ideas (Hakin 2011, 106), considering Duguit less
a jurist than a metaphysician (Hakin 2011, 102). In short, Duguit was ‘un maître à
penser’ [a thought leader] who played an instrumental role for reformers of any kind,
and for those pushing back against the private law tradition (Hakin 2011, 113). In
this work, Duguit was presented as belonging to the socialisation of law movement.
Notwithstanding its originality, Duguit’s work found little traction. At the core
of Ripert’s and others’ criticisms was that it oscillated ‘between idealism and pos-
itivism’ (Hakin 2011, 107). Duguit was associated with romanticism, psychology,
dogmatism, scientism, almost everything but law (Hakin 2011, 105), making him the
mal-aimé, the black sheep of academia (Touzel-Divina 2013, 9). And, no doubt due
to an unorthodox and even radical approach to civil law, Duguit was not a popular pri-
vate law academic. Indeed, critics were quick to dismiss Duguit’s radical approach,
Tissier writing that while ‘we admire also very much the marvellous talent and gen-
erous ideas of [Duguit]…we do not follow him in his destructive endeavour oeuvre
of our private law, that so many generations have patiently built and of which he want
to leave almost nothing standing’ (Hakin 2011, 103). Planiol agreed with the build-
ing opposition to Duguit’s ideas, arguing for his lack of standing in demolishing the
same civil law that many generations of academics had created (Hakin 2011, 100).
Hauriou would later say that Duguit was ‘an anarchist of the Chair’ (Touzel-Divina
2013, 9); others considered him an iconoclast (Touzel-Divina 2013, 9).
In France and beyond, then, Duguit was known for innovative public law schol-
arship. His Traité de droit constitutionnel, first published in 1911, presented itself
more like a ‘redacted lesson, with comparisons, repetitions, recalls of ideas previ-
ously discussed’ (Laborde-Lacoste 1959, 100). Breathe de la Gressaye presented
Duguit’s theory this way: ‘he saw in the state only a person like any other, more pre-
cisely only like individuals, the rulers, holding in fact the social force, but submitted,
by the rules, to the rule of law’ (Gressaye 1959, 205). He continued: ‘it is the society,
that, by the ineluctable fact of solidarity, impose rules onto the state as well as the
individuals’ (Gressaye 1959, 216). Initiator of the theory of public service, although
not the first to use the expression, he applied a methodology in which he audaciously
mixed sociology and law.18 This, too, was not always well received. Julien Bon-
necase, for instance, considered that Duguit was deluding himself in a ‘pure illusion’
by being united with August Comte’s ideas, while other academics, like Geny, argued
that Duguit was almost the only one to give ‘a coherent and firm doctrine, on the
facts of social and legal life, susceptible of a true scientific elaboration and on the
principles of such elaboration’ (Gény 1927 as cited in Hakin 2011, 95).19 In spite of
his critics, Duguit persevered in this novel approach to both analysing the law and
teaching it: for Duguit, the role of a professor of law was much more than simply
commenting upon positive laws (Melleray 2011, 380). Perhaps most audacious of
all, though, was Duguit’s ‘[g]iving the state a new appearance, transforming the law,
he appears as the precursor of a new way of thinking legal science’ (Espagno 2013,
15). The breath of his works makes Duguit truly an academic à part.
In this trailblazing, two academics left their mark on Duguit’s scholarship: Mau-
rice Hauriou and Emile Durkheim. Hauriou placed first in the aggregation at which
Duguit had come sixth (Malherbe 1996, 313) and their careers paralleled each other,
‘the two masters…regularly br[inging] up their respective themes in their exchanges,
debates, in their controversies. Each…challenging the other throughout their works’
(Mazeres 2011, 117; Milet 2003). Holding very different positions on the notion
of law itself, Hauriou’s and Duguit’s debate can be traced throughout their respec-
tive works; Jean Arnaud Mazeres states ‘on the philosophical foundations, we can
advance, schematically, that the essential orientation of the thought of the two mas-
ters has been to overcome the classical opposition between individual and society,
between an individualism where all belongs to the individual and an holism where
all is social’ (Mazeres 2011, 119). One explanation for this perspective is likely to
be found in the influence of Emile Durkeim. The two became colleagues and friends
when Duguit joined Bordeaux in 1886 (see, eg, Lukes 1973; Hayward 1960a, b), and
it is clear that ‘Duguit takes on Durkheim conceptions to analysis social solidarity,
[…] but its source is in the conscience of individual subjects’ (Mazeres 2011, 120).
Duguit died in 1928, leaving a scholarly inheritance of both debates and contro-
versies, with more than 67 articles and books appearing about him and his concepts
(Malherbe 1996, 313). This short biography makes it clear that in reading Duguit
one must adopt a three-dimensional approach: legal (and technical), sociological,
and political (Touzel-Divina 2013, 9). It was controversial in its time because law
was not seen as encompassing those disciplines; as such ‘what Duguit proposes is
neither an adaptation nor a reform, but really a major intellectual revolution. […] it
18 This is apparent in the 6th Buenos Aires lecture.

19 This was explicit from the dedication to Duguit in Gressaye and Laborde-Lacoste (1947), a book
which aided the diffusion of Duguit’s ideas.

is not surprising to see private lawyers react with force, as his public law colleagues
as well, going from admiration to irreducible opposition, even sometimes a form of
personal conflict’ (Hakin 2011, 87).
Indeed, Duguit, too, rejected the distinction between private and public law. This
is most certainly one of the reasons why he was not well received during his lifetime
(Hakin 2011, 108–109). One possible reason for this unorthodox approach can be
explained by his legal education and the fact that, at the time of his studies and
doctorate, the distinction between private and public law was not yet established.
This meant that for Duguit, ‘the science of law was inseparable from the history of
the institutions and the history of ideas and therefore inseparable from a humanistic
culture’ (Boyé 1959, 118–119). While there are many aspects to Duguit’s approach
which bear importance for the modern understanding of law—the concept of law
itself, the notions of the state and public service, the notion of legal acts—this book
focusses on one particular aspect of that approach: property as a social function,
explored, along with an analysis of legal science and legal sociology, in the sixth
and last lecture given by Duguit during his visit to Argentina (Hakin 2011, 83).
Indeed, and most importantly for this book, this lecture demonstrates how Duguit was
influenced by those jurists who had previously ignored or dismissed him (Espagno
2013, 15).
1.2.2 The Sixth Buenos Aires Lecture
Duguit was one of many intellectuals who travelled to new nations at the turn of the
20th century, allowing for a rich cross-pollination of ideas (Malherbe 1996, 313).20
While in Argentina, Duguit delivered a series of six lectures in Buenos Aires. In the
first published edition of the lectures, Les Transformations Générales Du Droit Privé,
Duguit wrote that the lectures examined ‘general transformations of private law since
the Napoleonic Code. …. [this transformation] is characterised by the constant and
progressive substitution of a legal system that is realist and socialist to a system that
is metaphysical and individualistic’ (Duguit 1920, xiv).
The lectures contain recurring thematic reflections, consonant with developments
in the French legal system at the time. First, France and its laws were being trans-
formed by recent reforms that led to the separation of church and state, and examples
are given throughout the lectures in relation to the use of churches to demonstrate
this point. Second, each of the lectures begins with ‘Messieurs’, acknowledging the
exclusive gender of the audience, ‘an elite constituted of professors, lawyers, stu-
dents’ (Duguit 1920, i). This reflects the cohort of its time; while it was open to
females, tertiary education was still predominantly male. During that time, French
society remained very much closed to the idea of women in the workforce and in
society. It would not be until 1938, for instance, that the incapacity of a married
20 He visited Romania, Belgium, the Netherlands, Spain, Portugal, the USA, and Egypt as well as
Argentina (Laborde-Lacoste 1959, 100).

woman to make a contract or to open a bank account was abolished. Third, Duguit
refers to associations and the division of labour. Three years earlier, Clemenceau had
mandated syndicalists to be arrested. A tension therefore existed and this reference
is unlikely to have been trivial. Furthermore, when reading the lectures, it is hard to
overlook the arrogance of talking to an audience and describing their system as less
advanced. This seems a product of its era, when the Napoléonic Code had been in the
ascendancy for over 100 years, and France saw itself as rather superior when com-
pared to most other, especially new, legal systems. Finally, while examples regarding
the installation of electricity poles and church use might surprise modern readers,
they reflect Duguit’s time: the separation between church and state in France was
only a few years old (1908) as was the development of public electric lighting.21
The sixth and last lecture clearly shows how Duguit convincingly yet judiciously
mixed sociology and law through the use of Comte and Durkheim.22 But more impor-
tantly, it is here that Duguit details the way in which property is a social function. In
the preface to the second edition, Duguit explains how ‘the 6th lecture…developed
the idea that the capitalist property, and more especially immovable, ceases to be
a subjective right to the individual to become a social function’ (Duguit 1920, iii).
And, addressing critics by emphasising the re-active character of the law ‘it is not
because there is no law imposing on the owner the obligation [to put the property to
use] that one could conclude that the notion of social function is yet to come. It is
only because the law has not yet been needed’ (Duguit 1920, iii).
Duguit published a second edition of the Buenos Aires lectures after the First
World War. Here, Duguit used examples from legislation to demonstrate the theory
of property as a social function. A law of 6 October 1916, for instance, allowed a
mayor of a commune to invite by registered letter a land owner to cultivate land. If
not undertaken within 15 days, the mayor could requisition the land and deliver it to a
communal committee, and this would be constituted by decree (Duguit 1920, vi). This
law was later supplemented by the law of 4 May 1918 which allowed the committee
to concede the exploitation of the land to farmers/cooperatives or syndicates of its
choice (Duguit 1920, vii). Duguit acknowledged the lack of frequent application
of these laws—partly because they were applicable only during the war (Duguit
1920, vii). They are nonetheless relevant, however, because they ‘demonstrate the
moment whereby the land owner ceases to fulfil his social function, the community
is naturally brought to intervene to ensure an exploitation vital to social life (Duguit
1920, ix). Broader examples make the same point23 such that by January 1920, Duguit
could conclude: ‘I stay convinced that every day, new facts will come to confirm the
exactitude of the general idea of which this study is inspired’ (Duguit 1920, xiv).
21 ‘La distribution d’électricité est une concession de service public de compétence communale’
(loi du 15 juin 1906), JORF du 17 juin 1906 p 4105.

22 Discovered in the translation of the sixth lecture in this edited collection.
23 Law of 9 March 1918, regarding the possibility and sometimes the duty to regulate tenancy
contracts and its article 56 stating that ‘any tenant can, under some formalities, impose to the
landlord the prorogation of the tenancy agreement, even after the war’; Law of 23 October 1919
and its article 6 that allowed for the punishment of anyone who manipulated the price of tenancies.
Duguit’s understanding of property demands attention today; we turn now to why

that is so.
1.3 Implications for Property
Duguit’s la propriété fonction sociale has two important implications for a modern
understanding of property. On the one hand, la propriété fonction sociale contributes
to an understanding of the very nature of the concept of property itself. In other
words, Duguit’s work forces us to think carefully about what it means to say that a
person has property in a thing or an item of social wealth. Second, on the other hand,
and perhaps more importantly, la propriété fonction sociale matters when property
is implemented or invoked in a living, real-world system of law. In other words,
once a given society decides that property as a concept ought to be the method of
allocating the use and control of things and items of social wealth amongst people, a
system of law is then tasked with implementing that means of effecting and protecting
those allocations. Duguit’s work informs what has come to be known as the social
obligation norm of property law, more so in civilian systems, but present, in nascent
form, even in common law systems, as the contributors to this volume reveal.
In short, Duguit’s work contributes to the important division between property as
theory and property as law. In theory, to the understanding of the nature of property
as a right which involves obligation. And, in law, as the foundation for the social
obligation norm in civil law traditions. While here we briefly outline the importance
of this division, the contributors to this volume explore the ongoing relevance of
Duguit’s understanding of property in the modern world.
1.3.1 Concept
MC Mirow summarises Duguit’s formulation of the social function this way: ‘capi-
talist property, and particularly real property, is increasingly less of a subjective indi-
vidual right and more of a social function[]’24 and that ‘[p]roperty is no longer the
subjective right of the owner; it is the social function of the possessor of wealth.’25
Duguit seems thus to ‘coin[] two hyphenated words to describe the old notion of
property or ownership and the new: right-property (propriété-droit) and function-
property (propriété-fonction)’ (Mirow 2010, 199). This, as each of the contributions
contained in this volume demonstrate, produces significant implications for the con-
24 ‘lapropriété capitaliste, et particulièrement la propriété foncière, cesse de plus en plus d’être un

droit subjectif de l’individu pour devenir une function sociale’ (Duguit 1920, iv as translated by
Mirow 2010, 199).
25 ‘La propriété n’est plus le droit subjectif du propriétaire; elle est la fonction sociale de détenteur
de la richesse’ (Duguit 1920, v as translated by Mirow 2010, 199).

cept of property. Before we do that, however, it is necessary first to dispose of some

issues of nomenclature.
We point out here simply that some of the terminology that Duguit uses creates
difficulties or, as we conclude, opportunities, for us to think more deeply about the
concept of property. These include the use, in French, of ‘propriété fonction sociale’,
‘sujet de droit’, ‘affectation’, and ‘affectation de la richesse’. The question arises: how
to translate these phrases into English so as to retain the full richness of meaning in
the original French? In short, because we sought to leave it open to our contributors to
define what these phrases mean in the context of their own interventions, we decided
to leave the first two of these phrases in their original French, while translating the
latter two into English. We believe this makes possible a new and fresh approach to
Duguit’s work; an approach relevant and useful in 21st century liberal life.
While we deal with each phrase in the Translator’s Preface, we consider here,
briefly, just one, and perhaps the most significant, of the opportunities made possible
by leaving Duguit’s words in the original French: that of the principal conception
‘propriété fonction sociale’. What is not clear here is whether in using ‘propriété’
Duguit is referring to ownership, to property, or to both. To foreshadow our own
conclusion, it is both; we retain this phrase in the original French in our translation
and throughout this volume (other than when referring to its use in English by our
contributors), thereby leaving it to the contributors to explore the ways in which it is
either or both. Here we merely explain why this choice matters.
We need to return at least to the Romans to understand why. Barry Nicholas
provides a succinct account of the Roman concept of ownership:
at its simplest it is the difference between mine and thine, at its most sophisticated it is
the ultimate right, the right behind all other rights. The elusive character of ownership can
be appreciated it one attempts to give precise meaning to the often-repeated statement that
Roman ownership is markedly, and to some of its critics excessively, ‘absolute’ (Nicholas
1990, 153–154).
And it is here that the differentiation between the concept of ownership and
property becomes difficult, for the Romans were never able to identify precisely what
this notion of ‘absolute’ meant. Nicholas identifies enjoyment of a thing, although
this may not always be available, such as the owner of a thing subject to usufruct
of another or land subject to the Roman form of lease. Similarly, title is a possible
meaning of the absoluteness of ownership, although this, too, can prove difficult in
practice for it is not always a straightforward thing to prove ownership, as opposed
to, in the case of English law, the right to immediate possession (Nicholas 1990,
154–156). To put it another way, then, the Romans struggled with differentiating the
rights that go to make up absolute ownership from the nature of that ownership itself.
The lack of conceptual clarity concerning the differentiation of ownership and
property seems to run through other civil law jurisdictions today. And it may turn
on how one understands propriété. In the leading English-language text on French
law, for instance, Bell, Boyron, and Whittaker write that ‘Article 544 of the Civil
Code declares that: Property is the right to enjoy and dispose of things in the most
absolute way, provided that it is not used contrary to statutes and regulations’ (Bell
et al. 2008, 275). But Taggart translates the same Article this way: ‘Ownership is the
right to enjoy and dispose of things in the most absolute manner, provided that use
is not made of them which is prohibited by law or regulations’ (Taggart 2002 149 n
25, citing Crabb 1995, 127). Thus, we are left uncertain as to the precise meaning
of propriété: is it property or is it ownership? Indeed, Roscoe Pound called this the
‘emphatic generalization’ of Article 544 (Pound 1955, as cited in Taggart 2002, 149
n 25). There is little doubt that we are in difficult territory whichever way we translate
propriété. But perhaps there is another way through.
We might first take Nicholas’s understanding of the meaning of absolute ownership
in Roman law as our foundation for the meaning of propriété as Taggart’s translation
confirms then we could take propriété to mean absolute ownership in the sense that
it contains the rights to enjoy and to dispose of things absolutely. Or, put another
way, the Romans of antiquity and the French of today seem to be grappling with the
interplay of property and ownership, as concepts, without the benefit of the seminal
work of Hohfeld and Honoré. The conjoint Hohfeld-Honoré framework brings much-
needed clarity, at least in the English-speaking world, to the relationship between
the two, but identifying the existence of jural opposites in the form of right, duties,
and so forth, and then identifying those rights, or standard incidents, that make up
the content of ownership. The two, ownership and its constituent rights, were clearly
differentiated using the Hohfeld-Honoré framework. And those interventions bring
clarity to what the civilian tradition, beginning with Rome, seems to understand, but
find difficulty in expressing either conceptually or in law: ownership is the totality
of the rights possible in a given thing or item of social wealth, and each of the rights
which comprise that totality are property rights.
JW Harris completed this conceptual clarity by suggesting that ownership is the
core compound right that encompasses the totality of all possible property rights in
a thing or item of social wealth. Importantly, though, any one of those rights, Harris
tells us, can itself count as property; only when a person is said to hold the totality of
those rights in any given thing or item of social wealth does it become possible to say
that that holder is an owner (Harris 1996). It is for that reason that we leave propriété
in the original French; simply, while we conclude, on the basis of Hohfeld-Honoré,
that it is possible to understand it as both ownership and property, we leave it to each
contributor to explore how this phrase might refer to property, to ownership, or to
both at the same time. We turn now, then, to some general implications of Duguit’s
formulation of the social function.
1.3.2 Law
Duguit’s primary contribution lies in the way legal systems have invoked the concept
of property as a means of allocating control over scarce resources. This contribution
has come to be known as the social-obligation norm, the very heart of which may,
contrary to what most may say today, emerge from the very core of neo-liberalism
itself. For this proposition, we begin with Michel Foucault, who said this:
Liberalism, as I understand it, the liberalism we can describe as the art of governing formed
in the eighteenth century, entails at its heart a productive/destructive relationship [with]
freedom […] Liberalism must produce freedom, but this very act entails the establishment of
limitations, controls, forms of coercion, and obligations relying on threats, etcetera (Foucault
2010, 64).
And it was probably the case that, as a matter of justice and fairness, the social-
obligation norm can be traced to the Romans in the form of an abuse of rights doctrine;
Paulus wrote this (Taggart 2002, 150–151):
Labeo…holds that if the dam is man-made…an action can be brought to ensure that the
neighbour allows its replacement though not one to compel him to replace it. For…[the
action to ward off rainwater] cannot be used to compel anybody to benefit his neighbour,
but can be used to stop him damaging his neighbour or interfering with him if the latter is
acting illegally. However, even though the action to ward off rainwater may be inapplicable,
nonetheless, I hold the view that an actio utilis or an interdict is available to me against my
neighbour if I wish to restore a dam on his land whose construction will be to my advantage
and will not harm him in any way. Considerations of fairness support this view even though
we may lack a clear legal right (Paulus at D.39.3.2.5 as cited by Taggart 2002, 151).
Other civilian traditions seem to recognise an abuse of rights doctrine (Taggart
2002, 146), as have mixed jurisdictions, such as Scotland (Taggart 2002, 149–152),
and as did France prior to Duguit and the identification of the social-obligation norm
(Taggart 2002, 145–149). But it was Duguit’s sixth lecture that shed new light on the
fullness of the norm, and gave it wider recognition. Indeed, the social-obligation norm
of property characterises the modern French understanding of the law of property, as
well as many other Civilian legal systems. Today, quite apart from the codification
of property in the Code civil,26 the interpretation by the French judiciary contains a
substantial set of restrictions, often of great complexity, prioritising the public good
through obligations as against the individual’s rights contained in property. Common
law systems, however, at least in a formal sense, seem to have eschewed such a norm.
Yet, as we will see in those contributions which address the common law, obligation
may nonetheless form an inherent part of property law. Here we briefly recount the
formal existence of a social-obligation norm in the civil and common law traditions.
1.3.2.1 Civilian
The social-obligation norm of property has today entered the codes of most civilian
legal systems (Taggart 2002, 146). This part briefly considers the French invoca-
tion. Notwithstanding the seemingly absolutist definition codified in Article 544 of
the Code Civil,27 the French judge-made law of property28 has crafted a social-
obligation norm of property in the form of a substantial set of restrictions, often
26 See Code Civil [Civil Code] (France), Books II, III and IV.
27 See Code Civil [Civil Code] (France), Article 544, and see also generally Books III and IV. And
see (Steiner 2010, 377–400; Bell et al. 2008, 269–293).
28 Not part of the codified law of property as found in the Code Civil [Civil Code] (France), Books III
and IV, ‘the doctrine of ‘abuse of right’ was developed in France by the judiciary in the late 19th cen-
of great complexity, prioritising the public good through obligations as against the
individual’s rights contained in property (Steiner 2010, 390). The most imaginative
of these restrictions is the doctrine of abuse of right (Steiner 2010, 391–393; Taggart
2002, 145–166), traceable to Cicero’s dictum summum jus, summa injuria (Cicero
2008, I, 10, 33), or ‘the strict enforcement of a law or a right may sometimes lead to
a great injustice’ (Steiner 2010, 390). The legal application of this dictum emerged
initially in Roman law and flowered throughout the civil law (Taggart 2002, 3; Reid
2004).
Nineteenth century French jurists, culminating with Duguit’s seminal work, devel-
oped Cicero’s dictum through social doctrines which transformed and replaced the
liberal conception of ownership with the view of property which prevails today,
stressing social considerations as a balance to the decision-making authority con-
tained in the rights of property (Steiner 2010, 390). LL Larombiere says that a person
exercising a property right must ‘do so prudently, with ordinary precautions, without
abusing it and without exceeding equitable (justes) limits’ (Larombiere 1857, 692).
Eva Steiner summarises the framework and contours of the doctrine in French law
as providing that
no one, in the exercise of his property rights, should have as his sole purpose the intention of
harming his neighbour. In other words, in certain circumstances, the use of one’s property
will become illegal when held as being prompted by a motive which is improper or malicious
(Steiner 2010, 390).
And the doctrine has been applied extensively in French property law cases since
the 19th century.29 In sum, the civilian approach to the social-obligation norm and
the abuse of rights doctrine is perhaps nothing more than the legal working out of
a theoretical aversion to the idea of absolutism; von Jhering put it this way: ‘There
is no absolute property—property, that is, freed from taking into consideration the
interest of the community, and history has taken care to engrave this truth upon the
minds of all people’ (von Jhering 1965, 7 as cited in Taggart 2002, 143 n 183). The
common law, however, treated the social-obligation norm and the abuse of rights
doctrine somewhat more sceptically.
1.3.2.2 Common Law
Unlike their civilian counterparts, the social-obligation norm receives a mixed recep-
tion in the common law tradition. While rejected in the formalism of the English
common law, in America, ‘[t]he citadel of formalism was stormed by the legal real-
ists in the 1930s…’ (Taggart 2002, 161) resulting in an acceptance of the doctrine
through a conception of malice forming part of the law of torts. Here we briefly
consider each development.
tury’: Steiner (2010, 391). Taggart (2002, 146–149 nn 13–17), identifies three principal cases: Badoit
v. André, Lyons, 1856, D.P.1856.2.199; Forissier v Chaverot, Req., 10 June 1902, D.P.III.1902.1.454,
S.1903.1.11; Clément Bayard v. Coquerel, 3 August 1915, S.1920.1.300, D.P.1917.1.79.
29 For a discussion of the cases, see Taggart (2002, 145–149).
English
Sir William Holdsworth once said of property in English law that ‘at no time
can the state be wholly indifferent to the use that owners make of their property’
(Holdsworth 1926, vol 8, c 4 cited by Cohen 1927, 23 as cited in Taggart 2002,
143 n 184). Yet, the English law, historically dominated by a focus on rights, which
enunciated in The Mayor, Aldermen and Burgesses of the Borough of Bradford v
Pickles,30 seems to have assumed talismanic status in English law. Few question it;
indeed, few think that property can even exist without it. But as with the whole of
property, it is merely part of the construction, the deployment of that concept within
a particular legal system.
Bradford v Pickles involved a dispute between Edward Pickles and the Corpo-
ration of Bradford. Pickles owned land adjoining a spring used by the Corporation.
The spring, fed by water below Pickles farm, was used to supply water to the town
of Bradford. In the early 1890s, Pickles announced his intention to drain that water
in order to mine for flagstone. Bradford took the view that Pickles was acting mali-
ciously, attempting to force the Corporation to pay for the land or a right to the
water. Pickles claimed the right to do whatever he wanted with the land unless paid
compensation by Bradford. Both sides refused to negotiate and, ultimately, the Cor-
poration sought injunctive relief against Pickles. The dispute reached the House of
Lords, which decided that Pickles had the right to do as he pleased with his land and
so the water.31
The common law developed the torts of nuisance, trespass and negligence to deal
with such problems (Steiner 2010, 390–391; Taggart 2002, 167–193); the limitation
of those torts, however, lies in the requirements that the person bringing an action
for one of them must themselves be claiming an interference with their own property
and so demonstrate some loss or damage to that property. Bradford, however, while
holding adjoining land, was simply claiming that Pickles’ conduct was motivated by
malice and that such rights could not be exercised maliciously so as to cause harm
to another, whether that involved damage to property or not. Yet, this claim ran up
against the difficulty that the idea that malice might be prevented by the law of torts,
‘never really flourished in English property law; penalising an owner’s malicious
motive being inimical to the common law approach of laissez-faire’ (Steiner 2010,
391).
Thus, in Bradford v Pickles, while the House of Lords concluded that injunctive
relief was available on the basis of the Bradford Waterworks Act 1854, the decision
left untouched the common law. While Pickles might have been motivated by malice,
the common law offered no authority to restrain a landowner from exercising property
rights in bad faith; no exception to the notion that rights to underground water were
absolute would be made for malice (Taggart 2002, 1–4). Taggart writes that ‘the
judges ignored or dismissed earlier dicta supporting such a limitation in English,
American, and Scottish cases, as well as in Roman law’ (Taggart 2002, 3, 145–166).
30 The Mayor, Aldermen and Burgesses of the Borough of Bradford v Pickles (1895) AC 587 (HL)
(‘Bradford v Pickles’).
31 The summary of the case is drawn from Taggart (2002, 1–4).
The principle established by Bradford v Pickles, taken to have ‘decisively shut the
door on the possibility of having a malice exception in English property law’ (Taggart
2002, 3) can be succinctly stated as
establishing that it is not unlawful for a property owner to exercise his or her property rights
maliciously and to the detriment of others or the public interest. This is accepted by many
as a bedrock principle of the common law, and like bedrock, is often invisible and taken for
granted (Taggart 2002, 1).
The prohibition on a doctrine of malice in Bradford v Pickles is nothing less

than a judicial codification of the modern liberal conception of private property as
absolutist which, as we have seen, places great emphasis on the right rather than on
obligation. And while the case might have been confined to water law, or even only
to real property law, the case has nonetheless come to be ‘taken as authority for the
much wider proposition that abuse of right is unknown to English law’ (Napier 1979,
267–268). It is, as noted above, axiomatic and talismanic.
Yet many have called for a reconsideration of Bradford v Pickles: Lords Denning
(1949, 68–69) and Reid (Reid 1968, 198), and Professors Pound (1963, 184–186,
197–198), Goodhart (1931, 36–37), Williams (1941), Friedmann (1960, 507), and
Allen (1924). And, most recently, Taggart, who concludes that
the legal position set out in Pickles was described in the 1930s as ‘the consecration of
the spirit of unrestricted egoism’, and many since then have seen it as the ‘apogee’ of the
absolutism of property exploitation. It is commonplace to observe that the tide had turned
against laissez-faire ideology for much of the last century, leaving the homo economius
(personified by Edward Pickles) high and dry. Successive waves of regulatory legislation
have left little room for such behaviour (Taggart 2002, 193, footnotes omitted).
Still, while Bradford v Pickles may reject the notion that property can be limited
through an abuse of rights doctrine, that is not necessarily the functional equivalent
of saying that property is absolute in the sense of allowing decision-making authority
to be exercised without limitation whatsoever. As we have seen, over 50 years ago,
having considered property generally, including that found in English law, Anthony
Honoré set out 11 incidents of ownership (Honoré 1961), two of which are the
prohibition of harmful use, and liability to execution. The prohibition of harmful use,
Honoré wrote, means that ‘uses harmful to other members of society are forbidden’,
while liability to execution captures the fact that an ‘interest [can] be taken away…for
debt, either by execution of a judgement debt or on insolvency’ (Honoré 1961, 107,
123). Thus, while it might reject the formal abuse of rights doctrine, English law
nonetheless accepts a form of the social-obligation norm as part of the law of property.
As we will see, American law, too, embraces social obligation as part of the content
of property law.
American
We can see in American law two ways in which a social obligation norm has
entered property. First, ‘enlightened’ (Cohen 1927, 23) American judges adopted a
form of the social-obligation norm through the concept of malice as a touchstone of
tortious liability in the late nineteenth-century (Taggart 2002, 144). Oliver Wendell
Holmes suggested as early as 1894 that ‘the intentional infliction of injury without
justification is actionable in tort’ (Holmes 1894 as summarised by Taggart 2002, 175;

Vandevelde 1990, 1991; American Law Institute 1979, [870]; Duport 1953; Shapiro
1983); this became known as the doctrine of prima facie tort. Following this early
lead, over time
[t]he emphasis on policy rather than conceptualism and the shift in focus from rights to duties
moved American courts increasingly to consider ‘the social needs of the community’. The
American judges thought that this was an inevitable step in the forward March of civilization.
This was in marked contrast to the formalistic conception of adjudication prevalent in Britain
(Taggart 2002, 179 nn 68–70 citing Tuttle v Buck, 107 Minn 145, 148 (1909) (Supreme Court
of Minnesota); Cardozo 1947; Stoner 1910).
To what extent has American property law followed the needs of the community?
The concept of property recognised by both French and American law appears at
first blush to be absolutist; in the case of the former, as we have seen, beginning
with the rigidity of Article 544, while in the case of the latter, made by judges
and affirmed by the scholarly literature (Poirier 2016, 101 n 2). But, just as in the
French, the harshness of the formal absolutist stance is softened by the existence of
a wider range of judicially crafted obligations imposed upon the otherwise absolute
decisionmaking authority of property. Gregory S Alexander maps these obligations,
which include ‘entitlement sacrifices’ (eminent domain and remedies for nuisance)
and ‘use sacrifices’ (historic preservation regulations and environmental regulations)
(Alexander et al. 2009, 773–810; Purdy 2009) While one might consider these to be
a working out of Honoré’s prohibition of harmful use and liability to execution, that
working out remains incomplete; Alexander concludes that
property recognizes that owners owe obligations. Yet, although American property law
implicitly includes a robust social-obligation norm, courts and scholars have failed to iden-
tify, let alone systematically develop, that norm (Alexander et al. 2009, 818–819).
There is little doubt, then, that much work remains to be done in relation to the
existence and operation of a social-obligation norm in the common law tradition.
Alexander puts it this way: ‘[e]xplicit recognition of this social-obligation norm is
long overdue. It is high time for property scholars to begin developing a social-
obligation theory’ (Alexander et al. 2009, 819). The contributors to this volume,
in exploring the seminal work of Duguit on the social-obligation norm, lend their
voices to this ongoing dialogue surrounding the norm, stretching back at least to the
Romans, and developing its underlying theorisation. We turn now to a brief overview
of our contributions to that ongoing dialogue.
1.4 Overview of the Book
The contributors to this book demonstrate the contemporary importance of Duguit for
property theory in both the civilian and common law worlds. The book is divided into
three parts: the first presents the first translation in over 100 years of Duguit’s Sixth
Lecture on property into English. The second part considers Duguit’s influence in
Europe. The third considers Duguit’s impact further afield, in South America—where
the social function is a well-established part of the civilian system of property law—in
North America, and in other parts of the world (Asia, Africa, and Australia)—where
the social function exists in both common law and civilian jurisdictions, but often
implicitly, without explicit connection to Duguit. Each contributor works from the
new translation offered here so as to provide insight into not only the way in which
Duguit’s social function of property has been interpreted in their jurisdiction, but
also as to how that interpretation has shaped the law of property there. The first
contribution begins, as one would expect, in Duguit’s birthplace, France.
1.4.1 Europe
This part of the book contains contributions from France, Germany, Norway, and
Russia. Alexandre Deroche’s contribution demonstrates the way in which Duguit’s
social function of property became a 20th century interpretive lens through which to
view article 17 of the Declaration of Human Rights (1789) and Article 544 of Civil
Code (1804), the two legal texts which found the French law of property. Deroche
argues that the social function came to play this role in two contradictory ways.
First, on the one hand, the fundamental texts, especially those of the Civil Code,
remained unchanged throughout the 20th century, with juridical doctrine taking at
best a conservative and at worst an overtly hostile approach to Duguit’s analysis,
either because that doctrine retained an individualistic conception of property and of
the necessity to defend it, or because it disapproved the too systematic character of
Duguit’s analysis. On the other hand, however, legislators regularly enacted special
legislation which tended towards Duguit’s analysis.
While much French property legislation in the inter-World War period found
justification in the exceptional circumstances of the time, Deroche argues that post-
Second World War legislation increasingly brought about far more ambitious and
sweeping structural reforms aimed at adaptation to rapid social transformation. These
developments posed a serious challenge to the individualistic conception of property
found in the formal legal texts, opting instead for outcomes which, while perhaps not
formally consonant with the social function theory, are certainly explained by it. As
such, Deroche concludes, while it never gained currency as a formal legal principle,
Duguit’s social function theory has enjoyed popularity as a theoretical concept used
to describe the evolution of important aspects of French property law.
Two contributions take up Duguit’s significance for German property law. In
the first, Martin Löhnig examines the history behind the introduction of the social
function, arguing that German regard for the community found in property law dates
both to Jhering’s thought and Duguit’s inspiration. The First World War strengthened
this development at both the sub-constitutional and constitutional levels: Eigentum
verpflichtet, sein Gebrauch soll zugleich Dienst sein für das Gemeine Beste (with
ownership comes responsibility, its use shall also serve the common good). While
disagreements continue as to the precise meaning of the words found there, both the
Weimarer Rechtsverfassung of 1919 and the Grundgesetz of 1949, still valid today,
confirm the priority accorded the common good in German property law.
In the second German contribution, Murray Raff argues that Duguit and modern
German jurisprudence share approaches to property rights that embrace responsi-
bilities as well as entitlements. For Duguit, that the responsibilities associated with
an object of property are to be ascertained in light of its broader social context fol-
lowed from the social function of property. In German jurisprudence the principle of
responsibility has been recognised by three schools of thought: (i) the 19th century
modern sociological style, (ii) the Historical School and particularly its Germanist
thinkers, and (iii) the long and deep tradition of modern natural law. Raff argues
that while Duguit disagreed with all three German schools of thought, there is nev-
ertheless a coherence between the perspectives. Moreover, while Duguit has been
noted in historical German legal literature, Raff concludes that if he were still writing
today he would probably embrace the current German approach and contribute to the
urgent moulding of an international conception of private property, especially with
respect to land, that protects the ecological integrity of ecosystems expected by the
international concept of sustainable development.
Geir Stenseth begins by suggesting that perhaps no society has carried Léon
Duguit’s vision of law as a social function more fully into effect than Norway. In
the post-World War II period, Norway witnessed a remarkable interaction between
the political and legal institutions (including academia) to promote social progress
through law. The law—and its institutions—have been used as tools to build an
egalitarian society with a strong welfare state and a protected and accessible natural
environment as some of its important cornerstones. And, as Léon Duguit argued for
the tearing down of a ‘metaphysical and individualistic’ legal system, to be replaced
with a ‘realistic and social’ system of law, so, too, the Norwegian legal system which,
to a large extent has abandoned comprehensive legal concepts in favour of ‘real con-
siderations’ as a source of law. This process has been labelled ‘Nordic Realism’,
with law being treated as ‘a means to an end’, or, Stenseth argues, ‘a social function’.
This contrasts with ‘Scandinavian legal realism’, a jurisprudential movement which
sought to destroy the influence of metaphysics upon legal thinking and to provide
a secure philosophical foundation for scientific knowledge of the law. Yet, Stenseth
suggests, Nordic Realism and Scandinavian Legal Realism are closely related to
Léon Duguit’s vision of law, with a ‘purely individualistic conception’ of law and
a ‘metaphysical conception of subjective right’ being replaced by a ‘realistic and
social system of law’. Over the course of its history, then, Norwegian property law
was transformed from uncontrolled individualism to a social form, the focal point of
property rights no longer ‘the absolute and exclusive quality of property’, ‘absolute
in duration and in effect’, ‘power to enjoin upon others respect for my will to employ
as I choose the thing that I possess as owner’, but rather, power in the state to design
property rights in ways that best serve a ‘social function’. The Norwegian Constitu-
tion provides for and operationalises the limitations imposed upon this power; yet,
most recently, the European Court of Human Rights’ interpretation of the property
protection found in the European Convention on Human Rights has made inroads on
this social function. As Stenseth concludes, times change, and, as Duguit put it, the
law has to adapt ‘under the pressure of facts’. It may be more accurate today, then,
to view the Norwegian concept of property as comprising both a right and a social
function.
Katlijn Malfiet focuses on two historical moments which illustrate how Russia
hesitated/refused to deviate from a unitary concept of property, and to qualify property
as a social function. The first involved the Russian Bolshevik’s failure to rely on the
communal property of the mir (the common property of the peasant community)
to build their Soviet Marxist-Leninist social and property structures. The second
occurred in the post-communist privatisation of the 1990s, a process during which the
de facto splitting of state property into bare ownership and operative management was
discontinued before state property was privatized. During this phase in the emergence
of modern Russia, the state did not (legally) reset its unitary concept of property as
an indivisible, exclusive right of possession, use and disposal. Malfiet argues that
the reasons for this dual refusal are found in the patrimonial foundation of power
in Russian politics, which upholds private property as a protection against the state.
As such, in a system which seeks to sustain political power, any social function of
property that might be found in Russian law remains unable to provide a concept of
social justice. And therein lies the difference between Duguit’s theory of the social
function of property and that found in Russian law. Unlike the latter, Duguit considers
property relations from an angle of power relations, subjecting them to communal
norm (both social and moral); Duguit elaborates a theory of public power, based on
the principle of social solidarity, claiming that individual or state appropriation has
to be submitted to a social qualification.
1.4.2 South America
The social function of property has perhaps spread most widely in the civilian systems
of South America. This may be unsurprising, given that this is where Duguit first
ventilated the concept. This part of the book contains contributions on Argentina,
Colombia, Brazil, and Latin America.
Although it began there, Matthew Mirow recounts the circuitous and transitory
route travelled by Duguit’s social function as it became a part of Argentina’s posi-
tive law of property. As in many Latin American countries, notions of property in
Argentina were found in both the private law of civil codes and the public law of
constitutions. For example, proponents of the social function of property unsuccess-
fully urged this characterization of property during drafting sessions for a new civil
code from 1926 until 1936. The draft code ultimately rejected the formulation; it
was never enacted, and the existing code continued to enunciate the classical liberal
paradigm of property. Nonetheless, after Peron’s rise to power, the social function
of property was enshrined in the Argentine Constitution of 1949, Article 38. The
debates of the drafters and particularly the work and interventions of Arturo Enrique
Sampay reveal the rhetorical strategies used to incorporate this radically new, yet
politically consistent, construction of property into the Peronist constitution.
Mirow argues that successful constitutional reform only occurs at particular polit-
ical moments, and in Argentina, this occurred for property when Peronists observed
the compatibility of the social function with many of their constitutional and legal
reforms. And Duguit’s work served as a source for the Argentine construction of the
social function of property from its introduction in 1911, during the first half of the
twentieth century, and until the repeal of the Peronist constitution in 1956. Still, as
Mirow explains, Duguit was only one of a variety of sources employed by advocates
of the doctrine, and his direct influence in the area is less than one might expect
considering the historical link between his lectures in Buenos Aires and the doctrine.
Argentine proponents of the social function of property appear to have turned equally
to emanations of the doctrine found in Catholic social teaching and its foundational
documents such as the papal encyclical Rerum Novarum (1891). Thus, while there,
Mirow concludes that Duguit’s voice was not a solitary one.
Daniel Bonilla traces the genealogy of the liberal form of property in Colombia,
of which he identifies three periods, each of which attempted a balancing of three
fundamental values in the liberal canon: autonomy, equality, and solidarity. In the
first period, beginning in 1886 and ending in 1936, a classical liberal property system
in which the Constitution and civil law formed an ideologically coherent machinery
prioritising autonomy over equality and solidarity. The second period, between 1936
and 1991, was characterised by a mixed system which both recognised the social
function of property in the Constitution and preserved an individualistic notion of
property in the Civil Code. In the third period, from 1991, an ideologically consistent
constitutional and legal framework committed to the idea that the right to property
must be defined through solidarity and equality. These three periods of property
emerged as a function of political struggles in the nineteenth century, which sought to
define the basic structure of the Colombian state. The individualistic system emerged
from the liberal authoritarian state established with the Constitution of 1886; the
mixed system in the second period followed the constitutionalisation of the liberal
interventionist state that occurred with the 1936 amendment of the Constitution
of 1886. The third, and final system, still found in Colombia today, was based on
solidarity but consolidated in and expanded upon by the Constitution of 1991.
In his contribution on Brazil, Colin Crawford explores how the social function
has a place in both the Brazilian constitution and in the celebrated City Statute of
2001. It is through this coupling of property with the concept of a right to the city that
the social function of property operates in Brazil. Crawford examines this coupling,
concluding that while it is an odd intellectual marriage, the social function has been
embraced by the Brazilian courts. Crawford suggests that limitations imposed upon
those seeking to plead and therefore vindicate their rights under both the social
function and the right to the city represent a major impediment to fully realising the
promise of both concepts.
In the final contribution in this part of the book, Thomas Ankersen and Thomas
Ruppert explore the place of the social function in Latin American land reform. For
many, they argue, the term ‘land reform’ in Latin America conjures images of Che
Guevara fighting an insurgency from the mountains of Latin America, of Emiliano
Zapata inspiring revolution in Mexico, and of Chico Mendes holding off bulldozers
with bullets to defend the rubber tapper movement in the Amazon rain forest. More
recent images include Comandante Marcos exhorting Mexicans to join yet another
revolution to redress poverty and landlessness in Chiapas, and Venezuela’s Hugo
Chavez threatening to expropriate British cattle ranches for redistribution to peasant
farmers. These images reflect nations and regions still held hostage by the concen-
tration of land in the hands of a few. While real property in the developed world
may no longer hold uncontested status as the most important resource a person can
hold, it remains so in much of the developing world. Latin America has been caught
for centuries in a vicious cycle of land consolidation and land reform; and this issue
perennially resurfaces, with this region among the world’s leaders when it comes to
the inequality of land distribution.
1.4.3 North America
Léon Duguit’s influence on the concept and law of property may be least recognisable
in North America. Yet, as the contributors in this part of the book reveal, one still finds
a clear understanding of the social function, albeit implicitly, in both the common
law jurisdictions of the United States and in the civil law system of Quebec, Canada.
Chris Odinet writes that Duguit’s social function has had a significant impact on
American property law, in ways both direct and indirect. His description of property
rights as moving away from an individualistic-centered theory to one that contem-
plates collectivism and pluralism—the social solidarity of the law—has touched not
only traditional forms of property, such as land, but has also had a profound impact
on the way in which American law addresses the flow of capital and deals with
discrimination and historical inequity. Odinet concludes by examining the social
function in American law as seen through the lens of common interest community
developments, consumer financial protection, and civil rights legislation.
Aside from Mexico, two islands of civilian law continue to exist within the ocean
of common law on the North American continent: one in Louisiana and the other
in Quebec. In the final contribution in this part of the book, Gaële Gidrol-Mistral
and Alexandra Popovici explore Duguit’s place in Quebec’s system of property.
Since 1994 and the new Civil Code of Québec, the legislator has entrenched a new
conception of property that resonates with Duguit’s aspirations for a realist system
of law. Indeed, not only did Duguit consecrate ownership of property, therefore
moving away from an era of ownership of corporeal things to ownership of assets,
but he also redefined property as having two means of being; either as belonging to
a person, and therefore continuing to embrace the subjectivist vision of property and
private law, or as appropriated to a purpose, therefore creating the possibility of an
objective foundation of rights. Gidrol-Mistral and Popovici examine two institutions
at the heart of what they call a small revolution: the trust, now understood as a
patrimony by appropriation, a purpose trust that knows no owner; and undivided
co-ownership of property appropriated to a lasting purpose, which, contrary to the
classical theory, might last indeterminably. Both redefine the place of subjective
rights and self-interest in private law; both place Duguit’s social function of property
at the forefront.
1.4.4 Asia, Africa, and Australia
As in North America, the imprint of Duguit’s thinking is more implicit than overt in
other parts of the world. Yet, as we will see in the contributions from China, South
Africa, and Australia, the notion of a social function is found in civilian communist,
hybrid civilian-common, and post-colonial common law systems.
In their chapter on China, Lei Chen, Andrew Michalek, and Jia Wang ask: what,
specifically, does the ‘social function’ demand? They argue that while Duguit was
decidedly ambiguous on this point, failing to provide a definitive definition on how
to satisfy this requirement, many believe that one of the reasons for this was that
Duguit was trying to develop a compromise between absolute property rights and
socialism. Chen, Michalek, and Wang argue, therefore, that the ‘social function’ of
property demands that the land and/or resources upon it be used to create a positive
social impact. And while it has gained international recognition, they suggest that
Duguit’s theory was hardly a new construct by the time it reached China. The idea
of property’s inherent social function has been deeply rooted in China’s long history,
citing as examples the ancient Chinese philosophers Mengzi and Confucius. The
first Chinese Civil Code, the Civil Code of the Republic of China (ROC) (1929-
1931), enacted before the Chinese Communist Party came to power in 1949, had
already enshrined several general principles with respect to social function. When
the ROC Civil Code was drafted, the prevailing view was that social harmony took
precedence over absolutist individual rights. This closely reflected the traditional
Chinese natural law philosophy that conciliation, mediation and compromise were
the preferred ways of settling a civil dispute. More recently, the General Provisions
of Civil Law, enacted in 2017 and intended to be an integral part of the Chinese Civil
Code, explicitly provides that any civil activity shall be conducted by civil subjects
in resource-saving and environmentally-friendly ways. Given the phraseology and
scope of the provisions one might argue that the social function of property has taken
root in contemporary Chinese legislation. Chen, Michalek, and Wang conclude by
considering the extent to which this ‘social function’ of property may influence the
Chinese constitutional property clause, rural land reform, social capital’s role in an
efficient operation of homeowners’ associations, and limitations on copyright.
Hanri Mostert and Cheri Young apply two basic premises of property found in
Duguit’s 1911 lecture to the South African context: that the legal construct of prop-
erty exists, first, to enable the meeting of the individual needs of the owner for the
development of physical, intellectual and moral activity; and second, to oblige the
owner to use a thing to the satisfaction of collective needs, the needs of a national
community as a whole or of secondary communities. Mostert and Young argue that
while the first proposition mirrors the reality of legal practice and the theory of
property law in early 20th century South Africa, the second is harder to trace. And,
for that reason, were Duguit to have given his lecture in South Africa in 1911, he
would have found it more difficult to latch on to real-life examples. At the same
time that Duguit articulated his ideas about the social function of property, the Union
of South Africa had just been formed (1910), with the main purpose of promoting
capitalist industrialization for the sake of the mining industry, which was meant to
serve imperial interests. Yet, today, the incorporation and prevalence of the social
norm in South African property law is practically taken for granted. Gregory Alexan-
der, one of the main proponents of the Progressive Property movement, had engaged
with the social norm thoroughly, using South African property law as one of his
metaphorical croplands. André van der Walt had advocated the development of the
social norm in property law all the way through his formidable body of work. The
express acknowledgement of the social norm had found its way into many recent
South African text books and reference works on property law and with it also the
curricula of most law schools. Most of the doctoral work on property law over the
past decade bows to the social norm as a given in property law. Mostert and Young
argue that the modern position came about as a consequence of the introduction of a
constitutional order, with a property clause at once protecting private holdings while
also imposing obligations on the state for ensuring transformation of unjust systems.
The overarching theme of this analysis involves a reflection upon a social-norm
driven property law, and what can be taught, and what can be learned, in applying
that to the South African context.
Peter Burdon and James Stewart provide the final contribution, assessing the prac-
ticalities and possibilities of Duguit’s social function under neo-liberalism as found
in Australian property law. Addressing Duguit’s articulation of the social function
norm through a contemporary lens, they argue that the steady shift towards indi-
vidualistic property relations limits the social function’s application. Drawing from
key thinkers on neo-liberalism, this paper balances contemporary issues in property
with Duguit’s evolutionary assumptions about property rights. Burdon and Stewart
conclude by acknowledging the difficulties in finding common ground between the
social function and contemporary, neo-liberal approaches to property. They close,
though, with one major exception to their findings: through Bonnie Honig’s idea of
‘public things’, they argue that within the public space there is a potential to utilise
the social function to aid ideas of community and property. This nuanced application
of Duguit locates a nexus where social obligations can function under neo-liberalism.
So, what do we learn? In one way or another, sometimes explicitly and sometimes
implicitly, Duguit’s thinking about property has come to play a significant role in the
concept and law of property the world over. We turn now to our contributors to fill
out the details of Duguit’s influence.
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Part I
English Translation of Léon Duguit’s
1920 Buenos Aires Lecture
‘propriété fonction sociale’
by Jessica Viven-Wilksch
Chapter 2
Translation
Jessica Viven-Wilksch
Avec l’aimable autorisation des Éditions La Mémoire du Droit, les références précises
de l’édition (Léon DUGUIT, Les transformations générales du droit privé depuis le
Code Napoléon, Paris, 1999, La Mémoire du Droit, réimpression de la 2e éd. de 1920
chez Félix Alcan).
J. Viven-Wilksch (B)
Adelaide Law School, The University of Adelaide, Adelaide, SA, Australia
e-mail: jessica.viven-wilksch@adelaide.edu.au

36 J. Viven-Wilksch
SIXIEME CONFERENCE
LA PROPRIETE FONCTION SOCIALE

Transformation générale de la conception juridique de propriété : elle cesse d’être le droit
subjectif du propriétaire pour devenir la fonction sociale du détenteur de la richesse. —Besoin
économique général auquel est venu répondre l’institution juridique de la propriété. —La
propriété dans le Code Napoléon et les principaux codes civilistes. —Les conséquences
qui résultaient de cette conception sont pour la plupart rejetées par la jurisprudence. —
Apparition dans la jurisprudence de la conception de propriété-fonction. —Obligations du
propriétaire : il est obligé d’employer la richesse qu’il détient conformément à sa destination
sociale. —Intervention du législateur. —La propriété d’affectation. —La loi française du 2
janvier 1907 sur les églises.
MESSIEURS,
La transformation de la notion juridique de propriété, tel sera l’objet de cette six-
ième et cette dernière conférence. Les juristes classiques trouveront peut-être ce titre
contradictoire. Ils estiment en effet que par définition et en soi la propriété est en
droit une certaine chose, qu’elle est forcément et toujours cette chose-là et que si elle
cessait de l’être elle cesserait d’être la propriété. J’ai déjà dit ce qu’il fallait penser,
à mon avis, de cette façon a priori et dogmatique de comprendre le droit; et si je la
rappelle, c’est qu’elle s’est affirmée et s’affirme encore à propos du droit de propriété
plus que dans tout autre matière.
Cependant la propriété est une institution juridique qui s’est formée pour répon-
dre à un besoin économique, comme d’ailleurs toutes les institutions juridiques et
qui évolue nécessairement avec les besoins économiques eux-mêmes. Or, dans nos
sociétés modernes le besoin économique auquel était venue répondre la propriété
institution juridique se transforme profondément; par conséquent la propriété comme
institution juridique doit elle-même se transformer. L’évolution se fait encore ici dans
le sens socialiste. Elle est encore déterminée par une interdépendance des différents
éléments sociaux de plus en plus étroite. Par la même, la propriété se socialise, si je
puis ainsi dire. Cela ne signifie pas qu’elle devienne collective au sens des doctrines
collectivistes; mais cela signifie deux choses : d’abord que la propriété individuelle
cesse d’être un droit de l’individu pour devenir une fonction sociale, et en second lieu
que les cas d’affectation de richesse à des collectivités, qui doivent être juridiquement
protégés, deviennent de plus en plus nombreux.
Telle est l’idée générale qui dominera tout cette conférence, et dont le lien avec
ce qui a été dit précédemment apparait aisément. Ici encore l’évolution que je
vais essayer de décrire est, je le crois, beaucoup moins avancée dans les pays de
l’Amérique du Sud, qu’elle ne l’est dans les pays européens, particulièrement en
France et en Angleterre. Je me placerai surtout au point de vue français et vous ferez
la comparaison.
2 Translation 37
SIXTH LECTURE
LA PROPRIETE FONCTION SOCIALE

General transformation of the legal concept of Proprieté: it ceases to be the subjective right
of the owner to become the social function of the holder of wealth. —General economic
need to which the legal institution of Proprieté has provided answers. —Proprieté in the
Napoleonic Code and the main civil codes. —the consequences that would result from this
conception are for most part rejected by case law. —Appearance in case law of the conception
of proprieté-function. —Obligations of the owner: he is obliged to use the wealth which he
holds in conformity with its social purpose. —Intervention of the legislator. —the proprieté
of affectation. —the French law of 2 January 1907 on churches.
GENTLEMEN,
The transformation of the legal notion of proprieté, such will be the subject of this
sixth and last lecture. Classical jurists will perhaps find this title contradictory. They
consider that by definition and in itself proprieté is in law a certain thing, that it
is absolutely this thing and that if it ceased to be this thing, it would cease to be
proprieté. I have already said what one ought to think, in my opinion, of this a priori
and dogmatic way of understanding law; and if I mention it again it is because it has
been affirmed and is still affirmed in relation to proprieté law more than in any other
subject.
However, proprieté is a legal institution that formed itself to answer an economic
need, as incidentally all legal institutions, and that it evolves necessarily with eco-
nomic needs themselves. Yet, in our modern societies the economic need to which
the legal institution of proprieté has provided answers deeply transforms itself; con-
sequently, proprieté as a legal institution must also transform itself. The evolution
here is happening in a socialist sense. It is again determined by an interdependence
of the different social elements that is becoming narrower. Therefore, proprieté is
socialising itself, if I can say so. This does not mean that it becomes collective in the
sense of collectivist literature; but it means two things: firstly that individual propri-
eté ceases to be a right of an individual to become a social function and secondly that
the cases of affectation of wealth to communities, which must be legally protected,
increase.
This is the general idea that will dominate this lecture, and whose link with what
has been said previously appears easily. Here again the evolution of what I am going
to try to describe is, I think, much less advanced in countries of Latin America, than
it is in European Countries, in particular in France and England. I will place myself
mostly within the French perspective and you will do the comparison.
38 J. Viven-Wilksch
J’ajoute une observation importante : dans cette étude je considèrerai exclusive-

ment ce que les économistes appellent la propriété capitaliste, laissant de côté la
propriété des objets de consommation qui présente des caractéristiques tout à fait
différents, et de laquelle il ne serait point exact de dire qu’elle évolue dans le sens
socialiste. Mais d’un autre côté je parlerai de toutes les propriétés capitalistes, aussi
bien de la propriété mobilière que de la propriété immobilière. Pour l’une et l’autre
le caractère de l’évolution est le même. Il apparaît cependant peut-être d’une façon
plus frappante pour la propriété foncière et c’est pourquoi c’est elle que je prendrai
surtout en exemple.
Dans votre pays, disais-je, l’évolution de la propriété est certainement moins
avancée qu’en Europe, particulièrement en ce qui concerne cette dernière espèce de
propriété. Peut-être pourrai-je caractériser le stade dans lequel vous êtes encore en
disant que c’est le stade de la propriété-spéculation, mais qui sera suivi à une époque
qui n’est peut-être pas très éloignée du stade de la propriété-fonction, l’évolution
des sociétés et particulièrement des sociétés latines parvenues à un même degré de
civilisation étant similaire.
I
A quel besoin économique est venue répondre, d’une manière générale, l’institution
juridique de la propriété ? Il est très simple et apparait dans toute société : c’est le
besoin d’affecter certaines richesses à des buts individuels ou collectifs définis, et
par suite le besoin de garantir et de protéger socialement cette affectation.
Pour cela, que faut-il ? Deux choses : il faut d’abord, d’une manière générale, que
tout acte fait conformément à l’un de ces buts soit sanctionné, et en second lieu il
faut que tous les actes qui y sont contraires soient socialement réprimés.
L’institution sociale qui est organisée pour atteindre ce double résultat, voilà la
propriété au sens juridique du mot. Quand nous nous demandons quelle est la notion
juridique de la propriété, nous nous demandons sur quelle notion repose l’institution
sociale qui a pour objet de protéger l’affectation d’une chose à un but individuel
ou collectif, de sanctionner les actes conformes à ce but et de réprimer les actes
contraires.
Cette institution sociale, comme les codes fondés sur le principe individualiste
et civiliste l’ont-ils organisée ? D’une manière bien simple. D’abord leurs auteurs
ne se sont point préoccupés d’apprécier la légitimité des appropriations existant en
fait et d’en déterminer le fondement. Ils ont pris les situations existantes et les ont
déclarées intangibles. D’autre part, profondément individualistes, ils n’ont eu en
vue que l’affectation de la richesse à un but individuel, le complément et comme la
condition même de la liberté, de l’autonomie individuelle. Ils n’ont compris et non
pu comprendre que la protection de cette affectation individuelle. Ils ont cru que le
seul moyen de protéger cette affectation, c’était de donner au détenteur de la chose
un droit subjectif absolu absolu dans sa durée, absolu dans ses effets; un droit qui
aurait pour objet la chose appropriée et pour sujet passif tous les individus autres que
l’affectataire lui-même. En un mot, ils ont adopté la forte construction juridique du
dominium romain.
2 Translation 39
I add an important observation: in this study I will consider exclusively what

economists call capitalist proprieté, leaving aside the proprieté of consumables which
present completely different characteristics, and which cannot be said to evolve in a
socialist sense. But on the other hand I will talk of all capitalist proprieté, movable
proprieté as well as immovable proprieté. For one and the other the characteristic
of evolution is the same. It appears however maybe in a more striking fashion for
immovable proprieté and this is why I will especially take it as an example.
In your country, as I was saying, the evolution of proprieté is certainly less
advanced than in Europe, particularly concerning the last type of proprieté. Per-
haps I could characterise the stage in which you still are by saying that it is the stage
of proprieté-speculation, but that will be followed by a period that may not be too
far from the stage of proprieté-function, the evolution of societies and particularly
Latin societies having reached a similar degree of civilisation.
I
To which economic need, in a general manner, does the legal institution of proprieté
provide an answer? It is very simple and appears in every society: it is the need to
affect some wealth to defined individual or community goals, and as a result the need
to guarantee and to protect socially this affectation.
For this, what do we need? Two things: it is necessary firstly, in a general manner,
to have an act done in compliance with one of these aims to be sanctioned, and
secondly that every act that is contrary to these be suppressed.
The social institution that is organised to reach this double result, that is proprieté
in a legal sense. When we ask ourselves what is the legal notion of proprieté, we
ask ourselves upon which notion the social institution is resting, the one that has as
its object to protect the affectation of a thing to an individual or community goal, to
sanction the acts in compliance with this goal and to suppress the contrary acts.
This social institution, how did codes founded on the individualistic and civil
principle organise it? In a very simple manner. Firstly, their authors did not worry
about appreciating the legitimacy of the appropriations existing in fact and deter-
mining their foundation. They have taken the existing situations and declared them
sacrosanct. On the other hand, profoundly individualistic, they only had in focus the
affectation of wealth to an individual aim, the complement and even the very con-
dition of liberty, of individual autonomy. They did only and could only understand
the protection of this individual affectation. They believed that the only means to
protect this affectation was to give the holder of the thing a subjective absolute right,
absolute in its duration, absolute in its effects; a right that would have as its object the
held thing and for its passive subject every individual other than the holder himself.
In one word, they adopted the strong legal construction of the Roman dominium.
40 J. Viven-Wilksch
Vous connaissez et j’ai cité dès la première conférence les textes qui consacrent
ce système : l’article 17 de la Déclaration des droits de 1789 : « La propriété est
un droit inviolable et sacré… » L’article 17 de votre constitution : « la propriété est
inviolable… » Les articles 544 et 545 du Code Napoléon : « La propriété est le droit
de jouir et de disposer des choses de la manière la plus absolue. » L’article 2540 du
Code civil argentin qui est encore plus énergique et plus significatif : « la propriété
est le droit réel en vertu duquel une chose se trouve soumise à la volonté d’une
personne. » Ce texte est complété par l’article 2542 : « la propriété est exclusive :
deux personnes ne peuvent tenir chacune en elle la totalité de la propriété d’une
chose. »
Ces textes marquent bien ce qu’a d’absolu, d’exclusif, la propriété-droit dans les
conceptions civilistes. Elle est la manifestation par excellence de l’autonomie de la
volonté humaine, de la souveraineté de l’individu, comme le pouvoir législatif est
la manifestation par excellence de la souveraineté de l’état. Dominium et imperium
sont d’ailleurs deux concepts juridiques qui ont la même origine et qui marchent de
pair.1
On connaît les conséquences qui résultent de cette conception de la propriété-
droit; je rappelle cependant les principales.
D’abord le propriétaire ayant le droit d’user, de jouir, et de disposer de la chose
a par là même le droit de ne pas en user, de ne pas en jouir, de ne pas en disposer,
et par conséquent de laisser ses terres sans culture, ses emplacements urbains sans
construction, ses maisons sans location et sans entretien, ses capitaux mobiliers
improductifs.
Le droit de propriété est absolu. Absolu à l’égard de la puissance publique qui
peut bien y apporter quelques restrictions dans l’intérêt de la police, mais qui ne
peut y toucher que moyennant le paiement d’une juste et préalable indemnité. Il est
absolu dans ses effets à l’égard des individus et, suivant la formule de M. Baudry-
Lacantinerie, le propriétaire « peut légitimement faire sur sa chose des actes même
quand il n’a aucun intérêt avouable à les faire » et si, en le faisant, il cause dommage
à autrui, « il n’est point responsable, parce qu’il ne fait qu’user de son droit2 ».
Le droit de propriété est encore absolu dans sa durée; et c’est sur ce caractère
que l’on fonde le droit de tester, le propriétaire, titulaire d’un droit absolu, ayant
logiquement le pourvoir de disposer de ses biens pendant son vivant et pour le temps
où il ne sera plus.
1 Cf Duguit, le droit social, le droit individuel, 2e edit. 1911, p. 17 et suiv.

2 Baudry-Lancantinerie, Droit Civil I, 10 édit. 1908, n 1296, p. 726. Je dois dire cependant que cette
formule ne se retrouve point dans la 11eme édition publiée avec la collaboration de M Chéneaux,
1912, n 1296, p. 738. Mais M. Chéneaux déclare que le propriétaire « jouit de sa chose comme
il le veut, même si cela lui plait, d’une manière abusive ». Les collaborateurs de M. Baudry ont
été beaucoup moins affirmatifs que lui sur le caractère la propriété en tant que droit absolu. M.
Chauveau (Des Biens, n 215) écrit : « Malgré son caractère absolu, la propriété doit encore être
circonscrite en des limites rationnelles… « M Bardo (Des Obligations IV, n 2855, p. 342): La
vérité, c’est qui n’y a point de droit absolu et que la propriété elle-même n’est un droit absolu et a
des limites. »
2 Translation 41
You know, and I have quoted since the first lecture the texts that sanction this
system: article 17 of the Declaration of rights of 1789: “proprieté is an inviolable and
sacred right…” Article 17 of your constitution: “proprieté is inviolable…” Articles
544 and 545 of the Napoleonic Code: “Ownership is the right to enjoy and dispose of
things in the most absolute manner.” Article 2540 of the Argentinian civil Code which
is even more energetic and more meaningful: “proprieté is a real right according to
which a thing is under the will of a person.” This text is completed by article 2542:
“proprieté is exclusive: two persons cannot hold each in themselves the totality of
the proprieté of a thing.”
These texts mark well the proprieté-right in civilian conceptions as absolute, as
exclusive. It is the demonstration by excellence of the autonomy of the human will,
of the sovereignty of the individual in the same manner that legislative power is
the demonstration by excellence of state sovereignty. Dominium and imperium are
incidentally two legal concepts that have the same origin and march hand in hand.3
We know the consequences that result from this conception of proprieté-right; I
recall however the main ones.
Firstly, the owner having a right to use, enjoy, and dispose of the thing has therefore
the right to not use it, not enjoy it, not dispose of it and consequently to leave his land
without cultivation, his urban sites without construction, his houses without tenancy
and without maintenance, his movable capital unproductive.
The right to proprieté is absolute. Absolute towards the public power which can
well impose some restrictions in the interest of regulation,4 but can only do so by
paying a just indemnity beforehand. It is absolute in its effects towards individuals,
and according to the formula of Mr. Baudry-Lacantinerie, the owner ‘can legitimately
do to his thing acts even he has no respectable interest to do’ and if in so doing, he
causes damage to someone else, ‘he is not responsible, because he was only exercising
his right.’5
The right to proprieté is also absolute in its duration; and it is on this characteristic
that we found the testamentary right of the owner, holder of the absolute right,
logically having the power to dispose of his goods both while living and for when
he will be no more.
3 Cf Duguit, le droit social, le droit individuel, 2e edit. 1911, p. 17 et suiv.

4 Ed: Notion of police power of the state for what American audiences would understand the notion
to be.
5 Baudry-Lancantinerie, Droit Civil I, 10 édit. 1908, n 1296, p. 726. I must however say that this
expression is not found in the 11th edition with the collaboration of Mr. Chéneaux 1912, n 1296,
p. 738. But Mr. Chéneaux states that the owner ‘can fully dispose of his thing in his own way, even
if it pleases him, to do so in an abusive manner’. The collaborators of Mr. Baudry have been less
affirmative than him on the characteristic of proprieté as absolute right. Mr. Chauveau (Des Biens,
n 215) writes: ‘In spite of its absolute characteristic, proprieté must be delimited in rational limits’.
Mr. Bardo (Des Obligations IV, n 2855, p. 342): ‘the truth is that there is no absolute right and that
proprieté itself is not an absolute right and has limits.’
42 J. Viven-Wilksch
Enfin dans le système civiliste, la protection de l’affectation d’une chose à un but

ne peut être réalisée que s’il existe un sujet de droit qui puisse devenir titulaire du
droit de propriété. Il faut une personne réelle ou, comme vous le dites, une personne
idéale dont la loi a créé l’existence juridique.
II
Il est facile de montrer qu’actuellement aucune de ces conséquences n’est vraie, au
moins dans certains pays, notamment en France. Si vous voulez que je sois moins
affirmatif, je dirai que tout le système est en train de disparaitre. Vous verrez tout à
l’heure que ce n’est pas là une affirmation gratuite, qu’elle repose sur l’observation
directe des faits, que dans la jurisprudence et dans la loi positive apparaissent toute
une série de décisions qui sont en contradiction absolue avec les propositions for-
mulées plus haut. N’est-ce pas la preuve qu’ainsi se désagrège et disparait le système
juridique dont elles n’étaient que la conséquence ?
Quant aux causes générales de cette disparition, elles sont toujours les mêmes :
ce sont celles étudiées jusqu’à présent et qui déterminent la transformation générale
des institutions civilistes et individualistes. D’abord la propriété-droit subjectif est
une conception d’ordre purement métaphysique en contradiction radicale avec le
positivisme moderne. Dire que l’individu détenteur d’un capital a un droit sur ce
capital, c’est dire qu’il a relativement à cette chose une volonté en soi supérieure et
s’imposant comme telle à celle des autres individus. Le dominium de l’individu n’est
pas plus intelligible comme droit que l’imperium du gouvernement détenteur de la
force.
Le système civiliste de la propriété se décompose aussi, parce qu’il tendait à
protéger uniquement des fins individuelles, considérées comme se suffisant à elles-
mêmes. Il correspondait exactement à la conception individualiste de la société et
trouvait son expression parfaite dans l’article 2 de la Déclaration des droits de 1789 :
« Le but de toute association politique est la conservation des droits naturels et
imprescriptibles de l’homme. Ces droits sont : la liberté, la propriété. » Si l’on
protégeait l’affectation individuelle d’une richesse, c’était uniquement en consid-
ération de l’individu; c’était uniquement l’utilité individuelle que l’on avait en vue.
Or, aujourd’hui, nous avons la conscience très nette que l’individu n’est pas une
fin, mais un moyen, que l’individu n’est qu’un rouage de la vaste machine qu’est
le corps social, que chacun de nous n’a de raison d’être dans le monde que par la
besogne qu’il accomplit dans l’œuvre sociale. Ainsi le système individualiste est en
contradiction flagrante avec cet état de la conscience moderne.
Enfin le system civiliste de la propriété disparaît parce qu’il n’avait été établi
que pour protéger l’affectation d’une chose à un intérêt individuel et qu’il ne peut
servir à protéger l’affectation d’une chose à un but collectif. Cela touche d’ailleurs au
problème des personnes collectives dont j’ai déjà parlé. Mais à la fin de cet entretien,
nous verrons une nouvelle application intéressante de l’idée de but remplaçant le
concept de sujet de droit.
2 Translation 43
Finally, in the civilian system, the protection of the affectation of a thing for a
goal can perhaps only be realised when there is a sujet de droit that can become a
holder of the right to proprieté. It is necessary to have a real person or, as you put it,
an ideal person of which law has created its legal existence.
II
It is easy to show that currently none of these consequences is true, at least in some
countries, notably in France. If you want me to be less confident, I would say that
the entire system is disappearing. You will see a bit later that this is not a wanton
statement, but one that rests upon the direct observation of facts, that in case law and
positive law appear an entire series of decisions that stand in absolute contradiction
to the expressions stated above. Isn’t therein the proof of the disintegration and
disappearance of the legal system from which they were only the consequence?
As for the general causes of this disappearance, they are always the same: these
are the ones studied until now and which determine the general transformation of
civilian and individualistic institutions. Firstly, the proprieté-subjective right is an
idea of purely metaphysical order in radical contradiction to modern positivism. To
say that the individual holder of capital has a right to this capital, is to say that he
has in this thing a relative will in itself superior and imposing itself as such when
compared to that of other individuals. The dominium of the individual is no more
understandable as rightful as the imperium of government as the holder of force.
The civilian system of proprieté decomposes itself also, because it tended only to
protect individual ends, considered to be self-sufficient in themselves. It corresponded
exactly with the individualistic idea of society and found its perfect expression in
article 2 of the Declaration of rights of 1789: “The aim of all political association
is the preservation of the natural and imprescriptible rights of man. These rights are
liberty, proprieté.”6 If one protected the individual affectation of wealth, it was only
through consideration of the individual; it was only the individual utility that was
prominent. However, today, we have the very clear consciousness that the individual
is not an end, but a means, that the individual is only a cog in the broad machine that
is the social body, that for each of us the only reason to be in the world because of
the task that he fulfils in the social endeavour. Thus, the individualistic system is in
obvious contradiction with this state of modern consciousness.
Finally, the civilian system of proprieté disappears because it had only been
established to protect the affectation of a thing to an individual interest and could
not be used to protect the affectation of a thing to a collective goal. This touches by
the way on the problem of collectivities about which I have already spoken. But at
the end of this lecture, we will see a new interesting application of the idea of goal
replacing the concept of the sujet de droit.
6 Ed:this is a truncated version of the provision which also includes…security, and resistance to
oppression.
44 J. Viven-Wilksch
III
Vous apercevez par là le fond de la conception nouvelle de la propriété. Dans les
sociétés modernes, où la conscience nette et profonde de l’interdépendance sociale est
devenue dominante, de même que la liberté est le devoir pour l’individu d’employer
son activité physique, intellectuelle et morale au développement de cette inter-
dépendance, de même la propriété est pour tout détenteur d’une richesse le devoir,
l’obligation d’ordre objectif, d’employer la richesse qu’il détient à maintenir et à
accroître l’interdépendance sociale.
Tout individu a l’obligation d’accomplir dans la société une certaine fonction en
raison directe de la place qu’il y occupe. Or, le détenteur de la richesse, par cela
même qu’il détient de la richesse peut accomplir une certaine besogne que lui seul
peut accomplir. Seul il peut augmenter la richesse générale en faisant valoir le capital
qu’il détient. Il est donc obligé socialement d’accomplir cette besogne et il ne sera
protégé socialement que s’il l’accomplit. La propriété n’est plus le droit subjectif du
propriétaire, elle est la fonction sociale du détenteur de la richesse.
Cette idée, c’est encore Auguste Comte qui l’a mise, le premier au XIXe siècle,
particulièrement en relief. Il écrivait en effet en 1850 dans le Système de politique
positive : « Dans tout état normal de l’humanité, chaque citoyen quelconque constitue
réellement un fonctionnaire public, dont les attributions plus ou moins définies déter-
minent à la fois les obligations et les prétentions. Ce principe universel doit certaine-
ment s’étendre jusqu’à la propriété, où le positivisme voit surtout une indispensable
fonction sociale, destinée à former et à administrer les capitaux dans lesquels chaque
génération prépare les travaux de la suivante. Sagement conçue, cette appréciation
normale anoblit sa possession, sans restreindre sa juste liberté et même en la faisant
mieux respecter. »7
Il est à noter qu’aujourd’hui, les plus ardents défenseurs de la propriété indi-
viduelle est protégée, c’est avant tout à cause de l’utilité sociale qui en résulte. M.
Courcelle-Seneuil (Dictionnaire d’économie politique de Léon Say, Vº Propriété)
parle comme Auguste Comte de la fonction sociale du commerçant, du propriétaire,
du capitaliste.
Ainsi le droit positif ne protège plus le prétendu droit subjectif du propriétaire;
mais il garantit la liberté du détenteur d’une richesse de remplir la fonction sociale
qui lui incombe par le fait même de cette détention, et c’est ainsi que je puis dire
surtout que la propriété se socialise.
7 Auguste Comte, Système de politique positive, édit. 1892, I, P. 156. On consultera utilement sur le
rôle social de la propriété, Landry, De l’utilité sociale de la propriété individuelle, 1901 ; Hauriou,
Principes de droit public, 1910, p. 39.
2 Translation 45
III
You perceive here the content of the new conception of proprieté. In modern soci-
eties, where the clear and deep consciousness of social interdependence has become
prominent, in the same way as the liberty is the obligation for the individual to use his
physical, intellectual and moral activity to the development of this interdependence,
all the same, proprieté is for every holder of wealth, the duty, the obligation in an
objective manner, to use the wealth he holds to maintain and increase this social
interdependence.
Every individual has the obligation to accomplish in society a certain function
directly linked to the place he holds within it. Yet, the holder of this wealth, since
he holds wealth, can accomplish a particular task that only he alone can accomplish.
Only he can increase the general wealth by exercising the capital he holds. Thus, he
is obliged socially to accomplish this task and he will only be socially protected if
he accomplishes it. Proprieté is no longer the subjective right of the owner, it is the
social function of the holder of this wealth.
This idea, it is August Comte again, who was the first in XIX century, particularly
to highlight it. He wrote to this effect in 1850 in System of Civil Polity: “in every
normal state of humanity, any citizen constitutes genuinely a public servant, whose
more or less defined remit determine both obligations and rights. This universal
principle must certainly extend to proprieté, where positivism sees especially an
indispensable social function, intended to form and administer capitals in which each
generation prepares the works of the following one. Wisely designed, this normal
appraisal bestows a title upon its holding without restraining its just liberty and even
commanding better respect.”8
One must note that today the most ardent defenders of individual proprieté, the
most orthodox economists are themselves obliged to recognise that, if the affectation
of a thing to an individual use is protected, it is above all because of its resulting
social utility. Mr Courcelle-Seneuil (Dictionnaire d’économie politique de Léon Say,
V Propriété) speaks as Auguste Comte of the social function of the businessman, of
the owner and of the capitalist.
Thus the positive right does not protect the so called subjective right of the owner;
but it guarantees the liberty of the holder of wealth to fulfil the social function
incumbent upon him by the fact of this holding, and it is thus that I can say that
proprieté socialises itself.
8 Auguste Comte, Système de politique positive, édit. 1892, I, P. 156.- ; One will also see interestingly
on the social role of proprieté, Landry, De l’utilité sociale de la propriété individuelle, 1901 ;
Hauriou, Principes de droit public, 1910, p. 39; Ed: official translation in Comte, System of civil
polity Volume I (1875), 125 : ‘In all healthy conditions of Humanity, the citizen, whatever his
position, has been regarded as a public functionary, whose duties and claims were determined
more or less distinctly by his faculties. The case of proprieté is certainly no exception to this general
principle. Proprietorship is regarded by the Positivist as an important social function; the function,
namely, of creating and administering that capital by means of which each generation lays the
foundation for the operations of its successor. This is the only tenable view of proprieté; and wisely
interpreted, it is one which, while ennobling to its possessor, does not exclude a due measure of
freedom. It will in fact place his position on a firmer basis than ever.’
46 J. Viven-Wilksch
Aussi bien je tiens à éviter ici tout malentendu. Je ne dis pas, je n’ai jamais
dit, je n’ai jamais écrit que la situation économique qu’est la propriété individuelle
disparaisse, doive disparaitre. Je dis seulement que la notion juridique sur laquelle
repose sa protection sociale se modifie. Malgré cela, la propriété individuelle reste
protégée contre toutes les atteintes, même contre celles qui viendraient de la puissance
publique. Bien plus, je dirai qu’elle est plus fortement protégée qu’avec la conception
traditionnelle.
D’autre part, je prends comme un fait la détention de la richesse capitaliste par
un certain nombre d’individus. Je n’ai point à critiquer ou à justifier ce fait; ce serait
peine perdue, précisément parce que c’est un fait. Je ne recherche pas non plus si,
comme le prétendent certaines écoles, il y a une opposition irrémédiable entre ceux
qui détiennent la richesse et ceux qui n’en ont point, entre la classe propriétaire et
la classe prolétarienne, celle-ci devant exproprier et anéantir bientôt celle-là. Mais
je ne peux me tenir cependant de dire qu’à mon sens ces écoles ont une version
tout à fait erronée des choses : la structure des sociétés modernes est beaucoup
plus complexe. En France notamment un grand nombre d’individus sont à la fois
propriétaires et travailleurs. C’est un crime de prêcher la lutte des classes, et je crois
que nous marchons, non point vers l’anéantissement d’une classe par l’autre, mais
au contraire vers un régime de coordination et de hiérarchisation des classes.
IV
Avec la notion de propriété-fonction, avec la notion de protection sociale de
l’affectation de la richesse à un but, nous acquérons l’intelligence très nette et
l’explication très facile de toutes les décisions légales et jurisprudentielles, qui sont
au contraire en opposition absolue avec le système de la propriété-droit.
Cependant, j’ai rencontré une objection qui m’a été faite à plusieurs reprises.
Plusieurs de mes collègues m’ont dit : « nous comprenons votre opinion, nous
admettons même que nous marchons vers un système de droit où la propriété aura
pour fondement l’obligation du propriétaire de remplir une certaine fonction. Mais
nous n’y sommes point encore parvenus; et la preuve en est que pas une législation
n’impose encore au propriétaire l’obligation de cultiver son champ, d’entretenir sa
maison, de faire valoir ses capitaux; et cependant ce serait la conséquence logique-
ment nécessaire de la notion de propriété-fonction. »9
9 Cf Notamment Jèze, Revue du droit public 1909, p. 193.

2 Translation 47
Just as well, I really care to avoid here any misunderstanding. I do not say, I never
said, I have never written that the economic situation which is individual proprieté
disappears, should disappear. I only say that the legal notion upon which its social
protection rests is changing. In spite of this, individual proprieté remains protected
against any infringement, even those that would come from the public power.10
And much more, I would say that it is even more strongly protected than with the
traditional conception.
Moreover, I take as a fact the holding of capitalist wealth by a certain number
of individuals. I do not have to criticise or justify this fact; this would be wasting
your time, precisely because it is a fact. I am also not looking for whether, as some
claim in some schools, there is an irremediable opposition between those who hold
wealth, and those who don’t, between the owner-class and the proletarian class, the
latter needing to expropriate and soon annihilate the former. But I cannot nonetheless
restrain myself from saying that according to me these schools have a completely
erroneous version of things: the structure of modern societies is much more complex.
In France, notably, a large number of persons are both owners and workers. It is a
crime to preach the struggle between classes, and I think we are walking not towards
the annihilation of one class by another, but to the contrary towards a regime of
coordination and a process of creating a hierarchy of classes.
IV
With the notion of proprieté-function, with the notion of social protection of the
affectation of wealth to a goal, we acquire the very clear understanding and the very
easy explanation of all legal and judicial decisions, which are to the contrary in total
opposition to the system of proprieté-right.
However, I have received an objection at several occasions. Several of my col-
leagues have told me: ‘we understand your opinion, we even admit that we are going
towards a system of law where proprieté has as its foundation the obligation of the
owner to fulfil a certain function. But we are not there yet; and the evidence is that
there is no legislation that imposes upon the owner the obligation to cultivate his
land, to maintain his home or to increase the value of his capital; and yet this should
be logically the necessary consequence of the notion of proprieté-function.11
10 Ed: i.e. the state.

11 See especially Jèze, Revue du droit public 1909, p. 193.
48 J. Viven-Wilksch
L’objection ne me touche pas. En effet, de ce qu’il n’y a pas encore de loi qui
astreigne directement le propriétaire à cultiver son champ, à mettre ses maisons en
rapport, à faire valoir ses capitaux on ne saurait conclure que la notion de fonction
sociale n’ait pas encore remplacé la notion de droit subjectif en ce qui concerne la
propriété. La loi n’est pas intervenue parce que le besoin ne s’est pas encore fait sentir.
En France, par exemple, la quantité de terres laissées à l’abandon par le propriétaire,
le nombre de maisons qui ne sont pas mises en rapport est insignifiant au regard de la
masse des capitaux immobiliers mis en valeur. Mais le fait que l’on pose la question
est à lui seul la preuve évidente de la transformation qui s’est accomplie. Il y a moins
d’un demi-siècle, la question ne venait à aucun esprit. Aujourd’hui elle est surtout
posée, et si, dans un pays comme la France, le moment venait où la non-exploitation
des capitaux fonciers prenait une extension sérieuse, nul ne contesterait certainement
que l’intervention du législateur serait légitime. Quant au non-emploi des capitaux
mobiliers, la thésaurisation, le législateur ne peut que difficilement l’atteindre; il est
incontestable que s’il pouvait la saisir, il devrait l’interdire et la réprimer.12
Dans les pays qui sont encore, suivant l’expression dont je me servais tout à l’heure,
au stade de la propriété-spéculation, le problème se pose; et cela est une preuve que
même dans ces pays la notion de propriété-droit tend à disparaitre. Celui ou ceux
qui achètent de très grandes quantités de terrains à des prix relativement bas et qui
restent plusieurs années sans les exploiter, attendant que l’augmentation naturelle de
la valeur de la terre leur procure un gros bénéfice, ne suivent-ils pas une pratique qui
devrait être prohibée? Si la loi intervenait, la légitimité de son intervention ne serait
guère contestable ni contestée. Cela nous met bien loin de la conception du droit de
propriété intangible, impliquant pour le propriétaire le droit à son gré d’agir ou de
rester inactif.13
12 Dans ses Principes de Droit Public, 1910, p. 38 M. Hauriou dit très justement : “ enfin descendons
au plus individualiste des droits individuels, au droit de propriété privée. L’élément de fonction y
est caché… sans doute on n’oblige pas directement le propriétaire à cultiver ; mais on compte sur
les fréquents changements de propriétaire… on sait que si l’un ne cultive pas, l’autre cultivera et
que l’intérêt de la très grande majorité sera de cultiver. Tout a été fort habilement calculé pour que
la fonction économique de la propriété fut assurée par le seul jeu de la liberté. Mais si un jour ou
l’autre on s’apercevait que la culture n’est plus assurée d’une façon suffisante, sans aucun doute
l’obligation juridique d’accomplir la fonction apparaitrait sous peine d’expropriation.” M. Hauriou
fait très justement observer que cette obligation existe pour les concessions de terre faites dans les
colonies et aussi pour la propriété minière, qui existe sous la condition d’exploitation. C’est ce qui
parait en effet ressortir de l’article 49 de la loi du 21 avril 1810 et de l’article 10 de la loi du 27
avril 1837. La portée de ces textes peut cependant être contestée et elle l’a été ; mais certainement
l’obligation d’exploitation sera fortement reconnue et énergiquement sanctionnée dans le projet de
loi dont la chambre des députés est déjà saisie depuis plusieurs années.
13 Voir l’appendice III, p. 1 2.
2 Translation 49
The objection does not touch me. Indeed, even though there is not yet a law that
directly compels the owner to cultivate his land, to maintain his home or to increase
the value of his capital we still could not conclude that the notion of social function
has not yet replaced the notion of subjective right in matters of proprieté. The law
has not yet intervened because there has not yet been a need for it. In France, for
example, the quantity of lands abandoned by the owner, the number of houses not
maintained are insignificant when compared to the mass of immovable capital put in
circulation. But the fact that we ask the question is, in itself, the obvious proof that
there has been a transformation. Less than a century ago, the question did not come
to mind. Today, it is asked, and if, in a country like France, the moment came where
the non-exploitation of immovable capital grew significantly, no one would certainly
contest that the intervention of the legislator is legitimate. Regarding the non-use of
movable capital, hoarding, the legislator can hardly reach it; it is indisputable that if
he could reach it, he should prohibit it and sanction it.14
In the countries that are still, according to the expression I was using before, at
the stage of proprieté-speculation, the problem comes up; and this is the evidence
that even in these countries the notion of proprieté-right tends to disappear. The one
or those who buy very large quantities of land at relatively low prices and who stay
several years without exploiting it, waiting for the natural increase of the land value
to give them a large profit, don’t they follow a practice that should be prohibited? If
the law could intervene, the legitimacy of its intervention would not be disputable
or disputed. This puts us very far from the idea of the sacrosanct right to proprieté,
implying for the owner the right to act willingly or to stay inactive.15
14 In his Principes de Droit Public, 1910, p. 38 M. Hauriou very appropriately stated: “Finally, let’s
get down to the most individualistic of individual rights, the right to private proprieté. The element
of function is hidden there… without doubt we cannot oblige the owner to cultivate; but we count
on the common regular change in ownership… we understand that if one does not cultivate, the
other will and that the interest of the very large majority will be to cultivate. Everything has been
skilfully calculated so that the economic function of proprieté is assured by the simple exercise of
freedom. But if one day or another we saw that the cultivation was no longer assured in a sufficient
manner, without any doubt the legal obligation to fulfil the function would disappear subject to
expropriation.“ Mr. Hauriou very rightly observes that this obligation exists for the concession in
colonies and also in mining properties, which exists under the condition of exploitation. This is
indeed what comes out of article 49 of the law of 21 April 1810 and article 10 of law of 27 April
1837. The significance of these texts can however be disputed and it has been so; but without doubt
the obligation of exploitation will be strongly recognised and vigorously sanctioned in the project
of law of which the Chamber of deputies [ed.: this is lower chamber of French Parliament] has
already been seized for several years.
15 See appendix III, p. 1 2.
50 J. Viven-Wilksch
V
L’objection précédente écartée et ces divers points précisés, il reste facile de déter-
miner ce que j’appellerai le contenu de la propriété-fonction et de montrer que les
propositions qui l’expriment cadrent parfaitement avec les décisions actuelles de la
jurisprudence et de la loi. En me référant à ce que j’ai dit dans la deuxième con-
férence sur le fait de l’interdépendance sociale, sur la division du travail, j’arrive
naturellement aux deux propositions suivantes :
1. Le propriétaire a le devoir et partant le pouvoir d’employer la chose qu’il détient
à la satisfaction de besoins individuels, et particulièrement des siens propres,
d’employer la chose au développement de son activité physique, intellectuelle et
morale. Qu’on n’oublie pas en effet que l’intensité de la division du travail social
est en raison directe de l’activité individuelle.
2. Le propriétaire a le devoir et partant le pouvoir d’employer sa chose à la satisfac-
tion de besoins communs, des besoins d’une collectivité nationale tout entière
ou de collectivités secondaires.
D’abord, dis-je, le propriétaire a le devoir et le pouvoir d’employer la richesse qu’il
détient à la satisfaction de ses besoins individuels. Mais il va de soi qu’il ne s’agit
que des actes qui correspondent à l’exercice de la liberté individuelle telle que je l’ai
définie précédemment, c’est-à-dire au libre développement de l’activité individuelle.
Les actes faits en vue de ce but sont protégés. Ceux qui n’ont pas ce but et qui, d’autre
part, ne poursuivent pas un but d’utilité collective, seront contraires à la loi de la
propriété et pourront donner lieu à une répression ou à une réparation.
Ainsi se trouvent très facilement et très logiquement expliquées toutes les déci-
sions qui reconnaissent et sanctionnent l’impossibilité pour le propriétaire de faire
sur la chose qu’il détient aucun acte qu’il n’a pas d’utilité à faire. Et voilà ces déci-
sions expliquées sans recourir aux théories contradictoires et inapplicables de l’abus
de droit, de la limitation du droit de propriété fondées sur la distinction impossible
de l’usage normal et anormal du droit de propriété.
Si je peux légalement bâtir une maison de rapport sur mon terrain, alors même
qu’elle cause un grave préjudice à mon voisin, c’est que j’emploie la chose dans
mon intérêt, il est vrai, mais en même temps en vue d’un but d’interdépendance
sociale. Je remplis la besogne sociale que ma détention me permet de remplir; j’assure
la satisfaction de besoins sociaux. Mais comme la jurisprudence l’a très justement
décidé, je ne puis pas légalement établir un écran sur mon terrain, une fausse cheminée
sur le toit de ma maison ou faire sans raison des fouilles dans mon jardin, parce que
je fais là des choses qui ne me sont d’aucune utilité et qui ne servent aucunement
l’interdépendance sociale.16
16 Voir l’appendice IV, p. 196.

2 Translation 51
V
The preceding objection set aside and these various points clarified, it becomes easy
to determine what I will call the content of the proprieté-function and to show that the
propositions that express it frame perfectly the current decisions of the judiciary and
of the legislation. By referring to what I have said in the second lecture concerning the
fact of social interdependence, on the division of labour, I simply reach the following
two propositions:
1. The owner has the duty and therefore the power to use the thing he holds to the
satisfaction of individual needs, and especially of his own, to use the thing to
the development of his physical, intellectual and moral activity. Let us not forget
indeed that the intensity of division of social labour is the direct reason for the
individual activity.
2. The owner has the duty and therefore the power to use his thing to the satisfaction
of collective needs, the needs of a national community as a whole or of secondary
communities.
First of all, as I say, the owner has the duty and therefore the power to use the thing
he holds to the satisfaction of individual needs. But it goes without saying that it
is only about the acts that correspond to the exercise of individual liberty as I have
defined it earlier, that is to say of the free development of individual activity. The
acts done with that goal in mind are protected. The ones that do not have that goal
and which also do not follow the goal of community utility will be contrary to the
law of proprieté and will lead to repression or compensation.
So here are very easily and very logically explained all the decisions that recognise
and sanction the impossibility for the owner to do in relation to the thing he holds
any act for which he has no utility. And here are explained all of these decisions
without resorting to the contradictory and inapplicable theories of abuse of right, of
limitation of the right to proprieté based on the impossible distinction between the
normal and abnormal use of the right to proprieté.
If I can legally build a house on my land, even though it causes serious damage to
my neighbour, it is because I use the thing in my interest, it is true, but at the same
time with the goal in mind of social interdependence. I fulfil the social work that my
holding allows me to fill; I ensure the satisfaction of social needs. But as judicial
decisions have very rightly stated, I cannot legally build a screen on my land, a false
chimney on the roof of my house or excavate in my garden, because then I do things
that are of no utility to me and that do not fulfil the social interdependence at all.17
17 See appendix IV, p. 196.

52 J. Viven-Wilksch
Mais, dira-t-on, ces choses inutiles ne sont pas en réalité interdites au propriétaire;
ce qui est interdit c’est le dommage qu’elles peuvent causer à autrui. Non point. Si
le dommage causé à autrui entraîne réparation, c’est précisément parce qu’elles sont
interdites. Nous avons vu en effet que les rapports entre individus, le dommage
n’entraine réparation que s’il est le résultat d’une faute et que la faute n’est autre
chose que la violation de la loi. Ce qu’il y a de vrai, c’est que lorsque les actes du
propriétaire, sans utilité pour lui, causent un dommage à autrui, la règle de droit qui
les prohibe a la sanction de la réparation. Mais la prohibition existe par elle-même;
car, si elle n’existait pas, il n’y aurait pas cette sanction. Si la chose n’était pas
prohibée, elle ne serait pas illicite et celui qui subit le préjudice ne pourrait point en
demander la réparation.
Il serait facile d’autre part de montrer que la notion générale sur laquelle s’établit
la théorie juridique de la propriété cadre très bien avec des décisions de la loi et de
la jurisprudence, qui sont au contraire en contradiction flagrante avec la conception
traditionnelle.
Si la propriété est un droit exclusif sur la chose, le propriétaire a le droit d’empêcher
qu’un tiers fasse sur cette chose, objet du droit de propriété, un acte quelconque, même
un acte qui ne lui occasionne aucun préjudice, un acte qui ne diminue en rien sa jouis-
sance. Or dans divers pays et particulièrement en France, des lois récentes décident
au contraire que l’on peut, même dans un intérêt privé et sans que cela constitue en
quoi que ce soit in dépossession, une expropriation et par conséquent sans qu’aucune
indemnité soit due, que l’on peut établir des fils télégraphiques et téléphoniques et
des conducteurs d’énergie électrique sur des propriétés privées et qu’une indem-
nité n’est due que s’il y a dégradations. Il importe d’ailleurs de bien noter que cela
est possible, même pour des lignes de télégraphe ou de téléphones privées et pour
des fils conducteurs d’énergie électrique alimentant des usines privées. La loi du
28 juillet 1885 relative à l’établissement et à l’entretien des lignes télégraphiques
et téléphoniques et la loi du 15 juin 1906 sur les distributions d’énergie électrique
sont très caractéristiques à cet égard et elles montrent bien comment les progrès de
la science rendent plus forts chaque jour les liens de la solidarité sociale et donnent
naissance à des institutions juridiques nouvelles.
J’ajoute que la question a été plaidée devant les tribunaux de savoir si un simple
particulier ne peut pas, sans le concours de l’administration, contraindre un proprié-
taire à accepter que des fils conducteurs d’énergie ou de lumière électrique passent
au-dessus de sa maison ou de son sol. Les tribunaux n’ont pas encore osé aller jusque-
là.18 Mais le fait seul que la question se soit sérieusement posée devant la justice,
montre combien on est loin de l’ancienne conception de la propriété, droit absolu,
exclusif et de l’application qu’en faisait l’article 552, §1 du Code Napoléon : « La
propriété du sol emporte la propriété du dessus et du dessous. »
18 Cf Jugement du tribunal de Bordeaux, 27 Novembre 1908, Sirey 1910 II, p. 230.

2 Translation 53
But, one will say, these useless acts are not in reality forbidden to the owner; what
is forbidden is the damage that they can cause to another. This is missing the point.
If the damage caused to another leads to compensation, it is precisely because these
acts are forbidden. We have already seen that in the relations between individuals,
damage only leads to compensation if it is the result of a fault and that the fault is
nothing else but a violation of law. What is true is that when the acts of the owner
without having utility to him cause damage to another, the rule of law prohibits them
through the punishment of compensation. But the prohibition exists in itself; because,
if it did not exist, there would not be any punishment. If the act was not forbidden,
it would not be illegal and the one who bears the damage would not be able to claim
compensation.
It would be easy on the other hand to show that the general notion upon which the
legal theory of proprieté is settled frames very well the decisions of the legislature
and that of the judiciary, which are to the contrary in obvious contradiction with the
traditional idea.
If proprieté is an exclusive right to the thing, the owner has the right to prevent
a third party to do to or with that thing, the object of the right to proprieté, any
random act, even an act that does not lead to any damage, an act that does not
diminish his enjoyment at all. However, in various countries and especially in France,
recent laws have decided to the contrary that one can, even with a private interest
and without it being a dispossession, or expropriation and therefore without any
reparation being owed, that one19 can build telegraphic and telephone cables and
conductors of electrical energy on private proprieté and that compensation is only
due if there is damage. Incidentally, it is important to note that this is possible, even
for telegraphic lines or private phone lines and for cables conducting electrical energy
supplying private industries. The law of 28 July 1885 relating to the establishment
and maintenance of telegraphic and telephone lines and the law of 15 June 1906 on
the distribution of electrical energy are very typical in this regard, and they show
well how the progress of science strengthens every day the links of social solidarity
and gives birth to new legal institutions.
I add that the question has been brought before the courts whether a simple
private individual cannot, without the support of government, force an owner to
accept that cables conducting electrical energy or light pass above his house or his
land. Courts have not yet dared to go that far.20 But the simple fact that the question
has been seriously brought before the courts, shows how far we are from the old idea
of proprieté, absolute right, exclusive, and of the application of article 552, §1 of
Napoleonic Code: “proprieté of the ground entails ownership of what is above and
below it.”
19 Ed: the state.

20 Cf decision of tribunal de Bordeaux, 27 November 1908, Sirey 1910 II, p. 230
54 J. Viven-Wilksch
VI
J’ai dit en second lieu que le détenteur d’une richesse a le devoir et par là le pou-
voir d’employer la chose à la satisfaction de besoins communs, de besoins d’une
collectivité plus ou moins étendue, à la poursuite d’un but d’intérêt collectif, sous la
condition, bien entendu, que ce soit un but licite. Cette proposition conduit à recon-
naitre l’autonomie de tout patrimoine collectif constitué par des individus, ou, en
d’autres termes, à reconnaitre la liberté d’association et la liberté de fondation. On
écarte ainsi toutes les controverses subtiles et sans objet sur la personnalité collective.
Je me suis expliqué à cet égard dans la troisième conférence et je n’y reviens pas.
Je voudrais seulement signaler un point qui mérite de retenir quelques instants
votre attention, parce que là nous pouvons toucher du doigt comment la notion
nouvelle de propriété, ce que j’appelle la propriété-affectation la propriété sans pro-
priétaire, se substitute à la notion ancienne de propriété-droit d’un propriétaire. Cela
apparait à propos des conséquences juridiques de la séparation des Eglises et de
l’Etat en France, conséquences qui mériteraient une longue étude.
La loi de séparation du 9 décembre 1905 avait reconnu que la propriété des églises
appartenait à l’Etat, aux départements, et pour le plus grand nombre aux communes,
mais que l’usage devait en être laissé pour le culte aux associations cultuelles qui
se constitueraient pour en assurer l’exercice. Le pape Pie X, pour des raisons que je
n’ai pas à apprécier, a interdit formellement, par l’encyclique Vehementer nos du 11
février 1906 et par l’encyclique Gravissimo officii munere du 10 août 1906, au clergé
et catholiques de France de former des associations cultuelles. Il semblait donc que
l’Etat et les communes allaient acquérir l’usage des églises, le libre exercice de leur
droit de propriété. Alors est intervenue la loi Briand du 2 janvier 1907 dont l’article
5, §1, porte : « A défaut d’associations cultuelles les édifices affectés à l’exercice du
culte, ainsi que les meubles les garnissant, continueront à être laissés à la disposition
des fidèles et des ministres du culte pour la pratique de leur religion. »
La loi ne disait pas autre chose, et ses rédacteurs n’avaient certainement pas
pensé aux conséquences qui allaient en résulter quand la question de sanction se
poserait. En fait, des conflits assez fréquents sont nés entre les maires et les curés,
les curés régulièrement nommés par l’évêque, les maires agissant au nom de la
commune propriétaire et installant parfois dans l’église un curé schismatique et dans
la commune une cultuelle aussi schismatique. Le curé régulièrement nommé par
l’évêque et les fidèles catholiques réclamaient pour le culte catholique la jouissance
de l’église. Avaient-ils une voie de droit à cet effet ? Ils ne sont pas propriétaires, c’est
la commune. Ils ne peuvent pas être usufruitiers, usagers, puisqu’ils ne constituent
pas un sujet de droit : la collectivité des fidèles n’a certainement pas la personnalité
juridique; et en tant que curé le titulaire du poste n’a pas une personnalité distincte
de sa personnalité privée. Ils n’ont donc pas d’action; dans le système civiliste et
subjectiviste, ils ne pouvaient pas en avoir.
2 Translation 55
VI
I have said, secondly, that the holder of wealth has the duty and therefore the power to
use the thing to the satisfaction of community needs, needs of a more or less diffuse
community, to the pursuit of a goal of common interest, under the condition, of
course, that it be a legal goal. This proposition leads the recognition of the autonomy
of any collective estate constituted by individuals, or, in other words, to recognise
the liberty of association and the liberty of foundation. We then set aside every subtle
and baseless controversy on the community personhood. I have explained myself on
this point in the third lecture and so I will not return to it.
I would simply like to highlight a point that warrants holding your attention
for a few minutes, because we can here touch with the finger how the new notion
of proprieté, the one that I call proprieté-affectation, proprieté without an owner,
replaces the old notion of proprieté-right of the owner. This appears in relation to the
legal consequences of the separation of Church and State in France, consequences
that could warrant a longer study.
The law of separation of 9 December 1905 recognised that the proprieté of
churches belonged to the state, departments, and for the biggest number to towns,
but that the use had to be left for the worship of cult associations that would be
founded to ensure its exercise. Pope Pius X, for reasons I will not comment upon,
formally prohibited, by the encyclical Vehementer nos of 11 February 1906, and by
the encyclical Gravissimo Officii munere of 10 August 1906, the clergy and Catholics
of France to found cult associations. It thus seemed that the state and the towns were
going to acquire the use of churches, the free exercise of their proprieté-right. But
then the Law Briand of 2 January 1907 came up, which article 5 §1 stipulates: “ for
lack of cult associations, the buildings assigned to the exercise of a cult, as well as
the furniture fitted within, will continue to be left to the disposal of worshippers and
cult ministers for the exercise of their religion.”
The law did not say anything else, and its drafters certainly did not think about
the consequences that were to result when the question of enforcement would come
about. In fact, relatively frequent conflicts have been born between the mayor and
the priest, priests regularly appointed by the bishop, the mayors acting on behalf of
the town owner, and appointing sometimes a schismatic priest and so in the town
a schismatic cult. The priest regularly appointed by the bishop and the catholic
worshippers would claim the enjoyment of the church for the catholic cult. Did they
have a right of action to this effect? They are not owners, it is the town. They cannot
be usufructuaries, users, since they do not constitute a sujet de droit: the community
of worshippers definitely does not have the legal personhood; and as a priest, the
holder of the position does not have a different personhood to his private personhood.
Therefore, they do not have any right of action; in the civil and subjective system,
they could not have one.
56 J. Viven-Wilksch
Et cependant une jurisprudence très importante déjà, et du conseil d’Etat et des

tribunaux civils, a reconnu au curé orthodoxe, à un fidèle quelconque de la commune,
la possibilité d’agir pour faire protéger l’affectation de l’église au culte catholique et
cela contre la commune propriétaire elle-même.21
21 La plus importante décision du Conseil d’Etat est assurément celle du 8 février 1908 (Deliard),
rendue sur les conclusions de M. le commissaire du gouvernement Chardenet : le maire d’une
commune ayant pris un arrêté interdisant la célébration du culte dans l’église au curé régulièrement
nommé par l’évêque, et au curé d’une cultuelle dissidente, le conseil d’Etat a déclaré recevable
et fondé le recours de l’abbé Deliard, curé nommé par l’évêque, tendant à faire annuler l’arrêté
du maire : « Considérant que le sieur Deliard, prêtre catholique, exerçant son ministère dans la
commune de… a intérêt, comme d’ailleurs tout fidèle de cette commune, à poursuivre l’annulation
d’un arrêté concernant la fermeture de l’église… considérant que le maire, par cet arrêté a porté
atteinte au libre exercice du culte garanti par l’article premier de la loi du 9 décembre 1905 et
l’article 5 de la loi du 2 janvier 1907… » (Recueil, 1908, p. 127). – Les décisions rendues par
les tribunaux judiciaires dans le même sens sont très nombreuses. Nous n’en citerons que trois
parmi les plus récentes. La Cour de cassation, par deux arrêts des 5 et 6 février 1912 rendus sous la
présidence de M. Baudouin, premier président, a décidé que, au cas de différend entre deux prêtres,
l’un desservant une cultuelle non reconnue par l’Eglise ou révoqué par l’évêque et l’autre nomme
régulièrement par l’évêque, ce dernier a seul le droit de s’adresser à la juridiction civile afin d’être
mis à même de pouvoir remplir sa fonction en se faisant remettre par exemple les clefs de l’église.
On lit notamment dans le second de ces arrêts confirmant l’arrêt de la cour de Riom du 1er mars 1909
rapporté dans Sirey, 12909, II, p. 28 (Abbé Journiac, curé de la commune d’Apchon) : « attendu en
effet qu’aux termes de l’article 5 §1 de la loi du 2 janvier 1907, à défaut d’associations cultuelles,
les édifices affectés à l’exercice du culte, ainsi que le meubles les garnissant, continueront, sauf
désaffectation dans les cas prévus par la loi du 9 décembre 1905, à être laissés à la disposition des
fidèles et des ministres du culte pour la pratique de leur religion ; attendu que ce texte maintient
expressément, sous le régime nouveau de la séparation, l’affectation des édifices religieux au culte
qui était antérieurement célébré sous le régime concordataire ; que, pour l’application de ce principe,
au cas où un conflit s’élève entre deux prêtres pour l’occupation d’une église catholique, l’attribution
de celle-ci doit être exclusivement réservée, à celui qui se soumet aux règles d’organisation générales
du culte dont il se propose d’assurer l’exercice, notamment à celles de la hiérarchie ecclésiastique
qui demeure en communion avec son évêque ; attendu que, vainement le pourvoi fait grief à l’arrêt
attaqué d’avoir refusé d’examiner si la révocation de l’abbé Esdoluc, prononcée par l’évêque de
Saint –Flour, était régulière et en accord avec les dispositions du droit canonique, ou si elle n’était
pas au contraire entachée à ce point de vue de nullité radicale, ainsi que le soutenait expressément
le demandeur sans ses conclusions ; attendu que la cour d’appel a légalement motivé le rejet de ces
conclusions, en déclarant à bon droit qu’il ne lui appartenait pas de rechercher si les mesures prises
par les chefs hiérarchiques des abbés Esdoluc et Journiac étaient conformes aux règles canoniques
et de les apprécier » (Gazette du Palais du 21 février 1912.) – La cour d’appel de Paris, dans un
arrêt du 9 février 1912, reconnait le bien-fondé de l’action en référé du curé de la cathédrale de
Reims et d’un certain nombre de ses paroissiens, demandant le rétablissement en leur état primitif
de certaines dépendances de la cathédrale qui avaient été modifiées sur les ordres du préfet (Le
Temps, 11 février 1912). – Cf. Duguit, Traité de droit constitutionnel, 1911, II, p. 128 et suiv. et la
bibliographie et la jurisprudence qui y sont données ; Bach, L’affectation des églises, 1911.
2 Translation 57
And nevertheless, case law already quite significant, and of the Conseil D’Etat22
and of civil courts, has recognised in the orthodox priest, to any worshipper of the
town, the possibility of a right to claim the protection of the affectation of the church
for the catholic cult and this against the town owner itself.23
22 Ed: The Conseil d’Etat is the highest administrative Court in France.

23 The most important decision of the Conseil d’Etat is undoubtedly the one of 8 February 1908
(Deliard), given on the pleadings of Mr. The commissary of the Government Chardenet: the mayor
of a town having drafted a decree prohibiting the celebration of a cult in the church by the priest
regularly appointed by the bishop, and to the priest of the dissident cult, the Conseil d’Etat has
declared admissible and valid the plea of priest Deliard, the priest appointed by the bishop, leading
to annul the decree of the mayor: “Considering that sir Deliard, catholic priest, exercising his
ministry in the town of… has a right, as by the way every worshipper in this town, to claim for
the annulment of a decree regarding the closing of the church … considering that the mayor, by
this decree has harmed the free exercise of cult guaranteed by the first article of the law of 9
December 1905 and by article 5 of the law of 2 January 1907…” (Recueil, 1908, p. 127). – The
number of decisions given by the judiciary that reach the same conclusion is very large. We will
only quote three among the most recent ones. The Cour de Cassation, by two decisions of 5 and
6 February 1912 given under the presidency of Mr. Baudouin, first president, has decided that, in
case of disagreement between two priests, one serving a cult either non recognised by the Church
or revoked by the bishop and the other regularly appointed by the bishop, only the latter has a right
to bring an action before the civil court in order to be put in a situation where he can fulfil his
function by being given the keys to the church. We read notably in the second of these decisions
upholding the decision by the court of Riom of 1 March 1909 to be found in Sirey, 12909, II, p. 28
(Priest Journiac, priest in the town of Apchon): “ given that according to the terms of article 5 §1
of law of 2 January 1907, for lack of cult associations, the buildings assigned to the exercise of
a cult, as well as the furniture fitted within, will continue, except for removal of the affectation
in situations forecast by law of 9 December 1905, to be left to the disposal of worshippers and
cult minister for the exercise of their religion; given that this text expressly stipulates, under the
new regime of separation, the affectation, of religious buildings to the cult that was previously
celebrated under the approved regime; that, for the application of this principle, in cases where a
conflict arises between two priests for the use of a catholic church, the handing out of the latter is
to be exclusively reserved to the one that submits to the general rules of organisation of the cult
of which he is proposing to ensure the exercise, especially the ones of the ecclesiastic hierarchy
which stays in agreement with his bishop; given that, in vain, the appeal complains that the lower
court have refused to examine whether the revocation of the priest Esdoluc, as stated by bishop of
Saint-Flour, was legitimate and in accordance with the rules of canon law, or if it was to the contrary
vitiated on this point by complete voidness, as the appellant was expressly stating in his pleadings;
given that the court of appeal has legally justified the dismissal of these conclusions by declaring
righthly that it was its function neither to determine whether the measures taken by the hierarchical
superiors of priests Esdoluc and Journiac were consistent with cannon rules nor to comment upon
them. (Gazette du Palais du 21 February 1912.) – the court of appeal of Paris in a decision of 9
February 1912, recognises the legitimacy of an urgent action by a priest of the Cathedral of Reims
and some worshippers, asking for the reinstatement in their primitive state of some outbuilding of
the cathedral which had been modified on the orders of the prefect. (Le Temps, 11 February 1912)
– Cf. Duguit, Traité de droit constitutionnel, 1911, II, p. 128s and the bibliography and case law
that are referred to; Bach, L’affectation des églises, 1911.
58 J. Viven-Wilksch
Voilà donc une propriété qui n’est plus rien et une affectation qui est tout, une
affectation qui est protégée contre le propriétaire lui-même; une affectation qui est
énergiquement protégée comme telle, sans qu’on puisse trouver trace ni d’un sujet
de droit ni d’un droit subjectif.
Je ne pouvais clore ces études sur un exemple qui montrât d’une manière plus
saisissante l’évolution des conceptions juridiques que j’ai essayé de décrire. Je crois
avoir rempli le programme que je m’étais tracé. Assurément je n’ai pas la prétention
d’avoir étudié dans tous ses détails cette transformation si profonde qui s’accomplit
de nos jours dans le monde social et, partant, dans le domaine du droit. Mais peut-être
en ai-je assez dit pour montrer que sous la pression des faits les vieilles conceptions
juridiques disparaissent, des institutions nouvelles se forment, que si pour étudier
le droit moderne on se borne à commenter les textes de nos codes, on ignore à peu
près tout de la réalité, et qu’on aboutit à l’impuissance si l’on veut faire rentrer les
catégories juridiques nouvelles dans les vieux cadres rigides du système civiliste.
Quelques amis bienveillants, quelques élèves trop flatteurs veulent bien parfois
me dire que je suis en France comme le chef de l’école réaliste. Non, Messieurs, et
pour deux raisons. D’abord parce que beaucoup de mes collègues mériteraient ce titre
mieux que moi; et ensuite et surtout parce que le réalisme n’est ni une école, ni une
doctrine; il est une méthode, la seule méthode féconde, la seule méthode scientifique
dans quelque ordre de connaissances que ce soit. Il faut observer les faits, les analyser
et en faire la synthèse. Mon éminent collègue, le docteur Widal, disait l’autre jour,
dans la brillante conférence qu’il a faite à votre Faculté de médecine, que pour étudier
la médecine il faut avant tout faire des observations physiologiques. Pour étudier le
droit, il faut faire avant tout des observations sociales et abandonner toutes les vieilles
conceptions métaphysiques, sans valeur comme sans réalité. J’ai essayé de suivre
devant vous quelques applications de cette méthode. Je serais heureux de ne pas être
reste trop indigne de l’auditoire d’élite qui a bien voulu suivre mes conférences.
Ce n’est pas sans tristesse que j’arrive au terme de cette tâche. Je m’étais habitué
à venir chaque semaine m’entretenir avec vous de ces passionnants problèmes. Mais
toutes les heures arrivent, a dit le poète, et voici l’heure du départ. Votre pays a je ne
sais quel charme attirant qui rend plus mélancolique le moment des adieux.
Mais si je pars j’emporte un souvenir précieux et un profit considérable de mon
séjour ici. J’emporte aussi le désir profond que l’œuvre de collaboration à laquelle
j’ai été le premier associé n’en reste pas là.
2 Translation 59
There is then a proprieté which is nothing and an affectation that is everything, an

affectation that is protected against the owner itself; an affectation that is vigorously
protected as such, without the trace of a sujet de droit or any subjective right.
I could not end these studies on an example that would show in a more striking
manner the evolution of the legal ideas that I have tried to describe. I believe I
have accomplished the program that I had drawn. Undoubtedly, I do not have the
flamboyance to have studied in every detail this transformation so deeply which
nowadays happens in the social world, and so, in the field of law. But maybe I have
said enough to show that under the pressure of the facts the old legal conceptions
are disappearing, new ideas arise, that if to study modern law we hold ourselves to
comment on the text of our codes, we ignore just about all of reality, and that we end
with powerlessness if we want to fit new legal categories to the old rigid framework
of the civil system.
Some kind friends, some students too flattering sometimes want to tell me that
I am in France like the leader of the realist school. No, Gentlemen, and for two
reasons. First of all because many of my colleagues would deserve this title more
than me; and also and foremost because realism is neither a school nor a theory;
it is a method, the only fertile method, the only scientific method in any order of
knowledge. One must observe the facts, analyse them and create the synthesis. My
distinguished colleague, Doctor Widal, said the other day, in the brilliant lecture he
delivered at your Faculty of medicine, that to study medicine, one must above all
else conduct physiological observations. To study law, one must above all else make
social observations and abandon all the old metaphysical conceptions, without value
or reality. I have tried to follow before you some application of this method. I would
be happy not to have remained too unworthy of the elite audience who has been
willing to follow my lectures.
It is not without sadness that I arrive at the end of this task. I grew accustomed
to come in every week to talk with you of these fascinating problems. But as every
hour arrives, as the poet said, here comes the time of leaving. Your country has an
attractive charm which makes more melancholic the time of goodbyes.
But if I leave, I take with me a previous memory and a considerable profit of my
stay here. I take with me also the deep desire that the endeavour of collaboration to
which I have been the first associate does not end here.
60 J. Viven-Wilksch
Le fait d’un professeur d’une faculté de droit française venant enseigner chez
vous (fait dans lequel ma personne n’est rien) restera une date dans l’histoire de nos
facultés, et je suis l’interprète de hautes personnalités autorisées en exprimant le vœu
qu’un interéchange scientifique s’établisse entre la faculté de droit de Buenos Aires
et nos facultés de droit françaises, particulièrement la Faculté de droit de Bordeaux,
relations scientifiques venant s’ajouter aux relations commerciales qui existent depuis
si longtemps entre nos deux villes. Il y aura là, j’en suis sûr, une œuvre féconde pour
nos deux pays et pour la science.
Merci encore de votre si aimable accueil, merci de votre si bienveillante atten-
tion. J’en garderai le souvenir reconnaissant. Permettez-moi d’espérer que vous
n’oublierez pas tout à fait celui qui pendant quelques jours a été votre collaborateur.
Buenos Aires, le 13 septembre 1911.
2 Translation 61
The fact that one professor of a French law faculty coming here to teach (the
situation in which my person is nothing) will remain a date in the story between our
faculties, and I am the intermediary of authorised high officials when expressing the
wish that a scientific exchange comes about between the faculty of law of Bueno
Aires and our French faculties, especially, the faculty of law of Bordeaux, scientific
relations that add to the commercial relations which have existed between our two
cities for so long.24 There will be here, I am sure, a fertile endeavour for our two
countries and for science.
Thank you again for your very friendly welcome, thank you for your very kind
attention. I will keep a grateful memory. Allow me to hope that you will not forget
completely the one that for a few days was your collaborator.
Buenos Aires, 13 September 1911.
24 Ed:Up until late 1880, Argentina is the first wine customer of Bordeaux. Then, Buenos Aires is
in commercial relations with the French city. Research has shown that today the relation is no more
and that there is no link academic, or administrative between the two cities or between Bordeaux
and Argentina.
Part II
The Importance of the Social Function
of Property—Europe
Chapter 3
of Property—France
Alexandre Deroche
Abstract Although France was Léon Duguit’s homeland and French scholars paid
attention to his theory, this one was not received unreservedly. Despite, the socializa-
tion of private property by the law in the XXth century is not doubtful. So, Duguit’s
theory remains helpful to analyse that great evolution from the 1804 Civil Code.
Keywords Sociological positivism · Doctrine · Civil code · Socialization of

property · Lease · Tenants · Housing · Urbanization · Expropriation
“Property is for every holder of wealth, the duty, the obligation in an objective manner,
to use the wealth he possesses to maintain and increase this social interdependence.
[…]. Property is no longer the subjective right of the owner, it is the social function
of the holder of this wealth” (Duguit 1912, 158). These are the words pronounced by
Léon Duguit in front of an Argentinian audience on September 13th, 1911, during a
series of conferences he was invited to make in Buenos-Aires. Duguit expressed the
same idea he had defended in 1905 in his opening speech at the National Congress
of Developed Property in France, which had taken place in his city of Bordeaux. He
1
should never stop defending that idea until his death in 1928.
The goal of the present contribution will not be to present Duguit’s thinking, since
this has been done yet in another place (Deroche 2015; Boccon-Gibod 2014). Let’s
remember that Duguit made a revolution inside the doctrinal tradition, especially the
academic one, in early XXth century France, on basing private property no more on
subjective right but on legitimizing it by its own social function, and on predicting
that private property would be protected and guaranteed in the future only insofar as
the owner would fulfil his social duty.
1 Duguit died on December 18, 1928 at the age of 69. For his biography: see Milet 2007, 271–273.
A. Deroche (B)
Tours, France
e-mail: alexandre.deroche@univ-tours.fr

66 A. Deroche
Here, we will not question Duguit’s thinking but its influence in French law during
XXth century. Let us add that our study will be limited to private property ownership,
since it is the most significant reversal of the paradigm forecasted by Duguit.2
How relevant is Duguit’s analysis of property? Did French legal evolution in the
XXth century confirm Duguit’s mind? Did the juridical doctrine well receive his
analysis?
These questions are all the more important because while Duguit’s thinking was
revolutionary in its time, one must not misunderstand this meaning of such revolution.
Duguit never intended to be an ideologist; he always refused to be one. So, when he
dared to make predictions, he only intended to say what law is or will be, not what
it should be. Sociological realism and positivism which are at the root of his method
led him away from any idealism—at least in his intention.
Duguit having claimed to cultivate nothing else but facts, is it not relevant to
wonder if facts proved him right? The answer that will be given to that question
can only be temporary. A definitive answer would suppose a complete study of
property settlement in XXth century, especially jurisprudence, which largely exceeds
the modest scope of the present contribution, based on the most significant, but still
partial, legal and doctrinal sources.3
Moreover, the answer will be cautious, since—as it can be guessed—the ques-
tion of private property question in XXth century France is highly complex and
ambiguous. No simple answer can be given to the question whether legal reality has
confirmed or not Duguit’s doctrine.
That could still be possible if one contents oneself with the fundamental legal texts,
Articles 2 and 17 of the 1789 Human Rights Declaration4 and Article 544 of 1804
Civil Code.5 Being more than two centuries old, these texts have remained unchanged
under nine political systems. However, we know that they do not correspond to
Duguit’s subjectivism and social conception of law.
There have been many attempts to redefine the fundamental right of property in
such a manner, in particular following the upheavals of the Second World War.
On the first part, the constitution project prepared under Vichy system in 1943
contained the following Article 4: ‘Acquired by work and maintained by family
2 This of course does not mean that the doctrine of Duguit cannot be tested on public property,
movable property or intangible property. It is even certain that this exercise would produce interesting
results. But the fact remains that it is the private real estate property that is the archetype of the
property covered by the 1804 Civil Code, which Duguit considered out of date.
3 On a doctrinal level, this study is essentially based on the consultation of the main civil law
textbooks, the major works devoted to the evolution of property rights after Duguit and the doctrinal
chronicles published in the most general of legal journals, the Dalloz collection, for nearly sixty
years.
4 Article 2: ‘The aim of any political association is the preservation of the natural and imprescriptible
rights of man. These rights are freedom, property, safety and resistance to oppression’; Article 17:
“Property being an inviolable and sacred right, no one can be deprived of it, except when public
necessity, legally established, obviously requires it, and under the condition of a just and prior
indemnity’.
5 ‘Property is the right to enjoy and dispose of things in the most absolute manner, provided that
they are not used in a manner prohibited by law or regulation’.

3 The Importance of the Social Function of Property—France 67
saving, property is an inviolable right, justified by the social function it gives to

its holder. No one can be deprived of it except in case of public utility and under
condition of a just indemnity’. That text was a synthesis between the liberal tradition
and the new social conception that has appeared under the IIIrd Republic, but, albeit
supported by Maréchal Pétain, it was never published.6
On the second part, after the war, the constitution project of April 19, 1946
included a declaration of rights which based the property right on a more social
foundation than in 1789. Its Article 36 said: ‘Property right could not be exercised
contrary to social utility or so as to harm the safety, the freedom, the existence or
to the property of others. Each possession, each firm which exploitation has or gets
the characters of a national public service or a de facto monopoly must become the
community’s property’.7 But that text was rejected by the French people through
the May 5, 1946 referendum, and the following two constitutions—that of October
27, 1946 which founded the IVth Republic and the present one of October 4, 1958,
which founded the Vth Republic—only referred to the 1789 Declaration.
The stability of these fundamental texts relative to property is remarkable but it
is not enough however to invalidate Duguit’s doctrine. This is because that stability
could be illusory, as noted by Duguit himself: ‘the text is still there; but it has neither
strength and nor life; or through clever and subtle exegesis, it has been given meaning
and significance in a way not planned by the legislator when it wrote it’ (Duguit 1912,
5).
In fact, the XXth century was marked by an increase in special legal texts limiting
private property, which is not without lending credit to Duguit’s doctrine and which
shook, at least for a certain time, certainties from the scholars.
Therefore, after having illustrated the socialization of property through law (I),
we will see how the social function of property was received by the doctrine until
early XXIth century (II).
3.1 The Socialization of Private Property by the Law
Even if we cannot be exhaustive, we can say that the legislator in the XXth century
drastically changed the juridical system of rural, commercial and urban properties,
in order to put the two first ones into service of economic exploitation and environ-
ment (A), and the last one into service of housing (B). Those aims covered strong
social concerns.
6 TheGermans opposed it (Godechot 1979, 341).

7 Professor Robert Pelloux interpreted the new property right ‘as a right to the social and economic
aspect, or rather a social function’ in ‘La Constitution du 19 Avril 1946’, chron. XII, Dalloz 1946,
46).
68 A. Deroche
3.1.1 The Rural and Commercial Properties Put into Service

of Economic Exploitation and Environment
A strict legislation was adopted from early XXth century, which rationalized the
agricultural land structures and protected the rural and commercial tenants to stim-
ulate the economic exploitation of productive goods. Later, a legislation to protect
environment was introduced, changes able to alter the significance of the notion of
private property.
3.1.1.1 The Rationalization of Land Structures
In the XXth century, the legislator wants to stimulate the productive function of
commercial and rural property, severely affected by two World Wars, and do so in
the general interest of the French society.
Duguit himself mentioned the Acts of 6 October 1916 and of 4 May 1918 to
put uncultivated lands under cultivation. Under district’s authority, the uncultivated
lands owners or usual tenants were firstly invited to accomplish ‘their duty’,8 and
in case of inability or unwillingness, the administration could requisition the land to
concede it temporarily to another farmer, possibly with a material or financial state
subsidy. These first enactments, which were followed by other ones in the 1940s,9
challenged the absolute character of property, which normally includes the right not
to use one’s good.
Increasing the production is also the goal of regrouping of lands, ruled by the
Act of 9 March 1941, which aim was to rationalize the land division in order to put
new land under cultivation and to have a better agricultural exploitation.10 Jacques
Doublet, counsel in the State Council [administrative supreme court], mentions this
act as an example, among others, of social utility which governs the legislation and
makes the state more managerial as for the land use (Doublet 1948, 200).11
In 1962, the Sociétés d’Aménagement Foncier et d’Etablissement Rural (SAFER)
[Companies for land development and rural setting-up], created in 1960 to reform
land structure and farm exploitations, were endowed with a pre-emptive right on a
large part of agricultural lands when they are alienated by landowners.12 The acquired
lands were destined to be sold to farmers who had to exploit them following terms
and conditions determined by the SAFER. The new owner had to use his property
in accordance with a certain purpose. He was not totally free in the use of his good,
8 Following the expression of the Minister of Agriculture Meline in the explanatory memorandum
of the 1916 Bill.
9 Act of 27 August 1940 on the inventory and cultivation of abandoned lands and holdings; Act of
19 February 1942 on the inventory and development of uncultivated lands, amended by the law of
May 23, 1943.
10 Articles 11, 12 and 17 of the Act.
11 J. Doublet, ‘La vocation du sol et ses aspects juridiques’, Dalloz 1948 chronique XLVII, 200.
12 Article 7 and following of the Act of August 8, 1962.
which made the pre-emptive right a ‘function-right’13 and gave the same character
to property as well.
Those acts are those in which the social function of property is the most obvious.
But the latter can also be identified in the legislation on commercial and rural leases.
3.1.1.2 The Protection of Tenant in Commercial and Rural Lease
The Act of 30 June 1926 on commercial and industrial lease, and the edict of 11
October 1945, modified by the Act of 13 April 1946, on rural leases, drastically
changed the relationship formerly favourable to the owner under the authority of
Civil Code. The 1926 act gave the commercial tenant a right to compensation in
case of loss or for the increase of value, if the lease was not renewed, which finally
dissuaded the owner from not renewing the lease.14 As for the 1945 edict and 1946 act,
they both submitted the farming tenant to a system of law and order highly protective
of the tenant: a 9 years minimum term, a right to renewal, a right to compensation in
case of non-renewal, a pre-emptive right in case of land alienation by the owner, and
the obligation for the owner to contribute to a rural settlement improvement account.
If those reforms were inspired by individual fairness for the tenant, it was not their
sole concern. As underlined by all commentators of the farming tenant reform, it also
aimed at increasing the land yield and productivity, which supposed the development
of the tenants’ rights, but less to give them a personal benefit and more to make him
the social interest servant. Moreover, the owner was not systematically penalized.
As soon as he intended to exploit the land himself—or have it exploited by near
relatives—, he could oppose the lease renewal and take the land back. Therefore, the
right of the owner implicitly depended on the exercise of the social function the state
wants him to respect it.15
3.1.1.3 The Protection of Environment
The content of social function can change. After 1945, economic productivity was
the exclusive element, in a post-war country whose population is still hungry.
But since the 1970s, and especially the Act of 10 July 1976 on the protection of
nature, the idea of environmental function of rural property, which is still of social
interest, has gained ground. That idea was supported in 1979 by Professor Jehan de
Malafosse, a pioneer of environment law, who announced that in the general interest
13 According to the expression of A. Boituzat, who notes, however, that motivation can remain
unclear and judicial control weak in ‘Protection du consentement, respect de l’initiative individuelle
et droit de préemption en matière de vente immobilière’.
14 Articles 4 and 7 of the June 30, 1926 act.
15 On the status of rural tenancy, let us refer to our recent study of its reception by academic doctrine
(Deroche 2016). We have shown that, although critical of the excesses of the new status of tenancy,
the authors who comment on it implicitly attach themselves to a conception of property in terms of
social function.
70 A. Deroche
of nature preservation, property could counterbalance agricultural overexploitation

(Malafosse 1979). Since then, this rationale has been supported, and the Environment
Code has never stopped getting thicker (Falque 1989; Grimonprez 2015).
3.1.2 The Urban Property Put into Service of Housing

in Harmonious Cities
In early XXth century and above all after the two world-wars, while the destruc-
tion caused by the war coincided with a big rural exodus, urban housing became
an important social and political priority. It led to a proliferating and disorganised
legislation, often made in emergency.
That legislation followed three political ways: the protection of tenants, a ratio-
nal and harmonious urbanization and the large construction of new accommodation.
Reforms drastically changed the notion of ownership of the land; it is however dif-
ficult to say in which proportion it has been transformed through social function.
3.1.2.1 The Protection of Tenants16
The first significant measures were imposed by social necessity from World War I:
lease prorogations and moratorium on rent payment.17 Originally, there was no inten-
tion to challenge the civil code principles: those measures were just temporary.
But what was temporary became permanent with the passing of legislation that
complicated the relationships between lessors and tenants, mainly those of 31 March
1922, 1 April 1926, 26 June 1929, 11 October 1945 and above all the 1 September
1948 codification act. The latter, as strictly ruling ancient buildings lease, led to
a distinction between the monitored building sector, including ancient buildings,
and the free building sector, including new buildings after the act promulgation. In
the monitored sector, rent is scientifically calculated following the accommodation
qualities, and the tenant has a right to maintain in the premises, which the owner can
only oppose under strict conditions, including ensuring the relocation of the tenant
(Ripert 1948, 194–195).
Have these reforms assigned owners a social function? Some commentators
believe so, such as Professor Marcel Fréjaville, who emphasizes that the reinforced
right of recovery that the owner can exercise, in case of insufficient occupation of the
property by the tenant, makes him take part to a better distribution of premises in the
general interest.18 Similarly, during the parliamentary debates on the 1948 act, the
16 Itwould be tedious to study the legislation in detail. We can refer to the panorama drawn up in:
Laborde-Lacoste 1965. Historically, see the summary in: Voldman 2016, 147–249.
17 Especially the Act of March 9, 1918 (Laborde-Lacoste 1967, 399).
18 At the end of the order of October 11, 1945. In case of death of the tenant and absence of occupation
by his successors or heirs within 3 months, the lessor could even, directly and without formality,
vice-president of the Council of Ministers Pierre-Henri Teitgen declared that for fifty
years, the legislator tended ‘to implement the social function of private property’.
And he added: ‘It is no longer about defending landlords against tenants or vice versa.
These concerns are now outdated. It is a question of saving the houses of French men
and women in their common interest, in the common interest of the French of today
and tomorrow. It is about ceasing to oppose mine and yours, to know at last; in this
area as in many others, it is about “differentiating the ours” (Sirey 1948, L 1536).19
Faced with this state of affairs, it is possible to argue that it is always the particular
advantage of tenants that dominates and that many measures eventually turned against
the original goal of increasing and improving urban housing.
Interwar legislation, by restricting the amount of rent, discouraged property own-
ers from maintaining and investing in real estate that did not generate profit any
longer, thereby aggravating the housing crisis (Laborde-Lacoste 1965, 452; Sirey
1948, L 1529–1536; Julliot de La Morandière 1957, 32). For this reason, the 1948
act has certainly provided for an increase in rents, but through moderation so as not
to weaken the economic situation of tenants and through the institutionalisation of
their housing benefits. In the end, landowners appear to be more marginalized than
actors in housing policy. As Gaston Morin points out, their role is reduced to the
perception of rents (Morin 1950, 9), which is a very thin role to constitute a social
function.
3.1.2.2 A Rational and Harmonious Urbanization
The characteristics of the owner builder became more and more framed and con-
strained in his projects by legislation that imposed easements, which became bur-
densome as they did not give right to any compensation (Liet-Veaux 1981, 249–250).
The Acts of 1884 and 1902 imposed, in the most populated cities, a plan of alignment
and the need for a building permit. The Act of 14 March 1919, modified by the Act of
19 July 1924, imposed on the communes of more than 10,000 inhabitants, a plan of
reconstruction, development, beautification and extension—among others—which
obliged every owner within its perimeter to ask permission to build and to respect
alignments and various hygienic and aesthetic requirements.
This law was the first major act of urban planning legislation, a body of law that
would continue to develop uninterrupted. It enacted as many prohibitions as positive
obligations to build in a certain way, in the name of an urbanization preserving
aesthetics and public health. Additionally, we must add the Act of 31 December
1913 on historical monuments, that laid the foundation of what is today an extended
require a police commissioner and have the doors forced open. But according to Fréjaville, this
provision was so brutal in the eyes of the public that justice paralyzed the exercise (Fréjaville 1946,
21).
19 It should be noted, however, that Teitgen places his remarks under the authority not of Duguit, but
of St. Thomas Aquinas and Catholic academic jurists Renard and Trotabas, authors of The social
function of private property in 1930. He refers to “old Christian definition”.
72 A. Deroche
a right of historical and cultural heritage (Bady et al. 2013).20 In the name of an
historical and artistic interest which exceeds his personal interest and takes a social
resonance, the owner sees, sometimes against his consent, his property subject to
an administrative regime of authorization and prohibition of any modification of his
good susceptible to affect preservation.
Does this result in making the owner builder or restorer an official in the service
of society? The answer remains ambiguous.
3.1.2.3 The Enormous Construction of New Housing
The release of insufficiently occupied housing and especially the construction of

new housing, aims clearly stated and pursued in the aftermath of the Second World
War, led to the development of a voluntarist legislation with serious consequences
for private property. This objective justified an increase in the prerogatives of public
power such as requisition, expropriation and pre-emption.
The requisition set up in 1938 in anticipation of the coming war, was reinforced
by an order of 11 October 1945. It allowed the administration to take possession of
vacant, unoccupied or insufficiently occupied premises for the purpose of assigning
them to certain civil servants for the needs of the public service or to some very
poorly housed individuals or families.21 More recently, the requisition has resurfaced
through the Act of 29 July 1998 on the fight against exclusion.22
The law of expropriation, through several reforms and recast, extended the rea-
sons of public utility justifying the recourse to this prerogative and diminished the
procedural guarantees afforded to property owners (Harouel 2000, 108–117).
A right of pre-emption was granted to public authorities in the area of “zones
d’urbanisation prioritaire” (ZUP) [priority urbanization zones] by the order of 31
December 1958 and “zones d’aménagement différé” (ZAD) [deferred development
zones], established by the July 26, 1962 act, then in the areas of “zones d’intervention
foncière” (ZIF) [land intervention zones], created by the Act of 31 December 1975,
to limit land speculation in spaces which cities intend to develop in the future.
The scope of these measures is ambiguous in terms of social function theory. At
first glance, they may signify failure, reflecting the material inability of private owners
to achieve, by their own means, the social objective of massive housing construction
(Laborde-Lacoste 1965, 452–453). Overwhelmed by the magnitude of the task, they
must give way to the public authorities, who evict them more or less directly—and at
20 See especially the contribution by M. Cornu, N. Wagener titled ‘Quelle conception de la propriété
dans la loi du 31 décembre 1913?’.

21 Articles 25 and 28 of the Ordinance set out the criteria of the requisitions and the conditions for
receiving them (Luchaire 1949, 31).

22 In addition to a tax on vacant dwellings in urban areas of more than 200,000 inhabitants where
there is a marked imbalance between supply and demand for housing, to the detriment of low-
income and disadvantaged people, the law gives the state the power to requisition, under certain
conditions, vacant premises belonging to legal persons, where there is also an imbalance between
housing supply and demand (Articles 51 et 52 of July 29, 1998).
the lowest possible cost—from their property. At most, it could be said that Duguit
was right when he announced that private property would cease to be protected when
it no longer fulfilled its social function. But there is something more disturbing: a
phenomenon that the commentators of the new laws have not failed to raise, namely
the tendency to expropriate even when the owner fulfils his social function. Thus,
the constituent assembly and the legislator legislated, in the aftermath of the war,
in favour of a great movement of nationalizations of companies. It is here difficult
to claim that such action did not take on any social function previously, companies’
activities remaining generally the same after nationalization. Similarly, in urban
planning, commentators of jurisprudence were surprised that the expropriation of
private landowners who already carried a project similar to the one for which they
were expropriated was allowed. The logic of the social function should have led, on
the contrary, to preserve these owners (Gilli 1975, 129; Domestici-Met 1981, 232,
237).23
But it would be incomplete to stick to this observation. The new expropriation and
urban planning procedures have often had private persons as final beneficiaries, who
are generally responsible for developing the newly vacated spaces. It was therefore
other private owners who were substituted for the old ones, and precisely because
the new ones were able to fulfil the mission that was expected of them. In sum, the
theory of the social function finds its relevance.
Thus, the land Act of 6 August 1953 introduced a great innovation by allowing to
expropriate for the sake of private interests, considered sufficient to characterize as
public use. Expropriations could occur to make way for the construction of housing
or the establishment of new industries. Properties acquired by way of expropriation
could then be assigned or leased to both private and public persons, under conditions
fixed by specifications (Josse 1954, 45–46). Case law went in the same direction.
The judgment of the Council of State of 20 July 1971 in the case of Ville de Sochaux
sets a date, in that the Sovereign Administrative Court confirms expropriation for the
main benefit of a private enterprise essential to local economic development, here
the car manufacturer Peugeot (Domestici-Met 1981, 234; Aubert 1979, 28; Hostiou
1989, 40–41). Other judgments were then made in the same direction in favour of
industrial and commercial enterprises even for achievements simply necessary to the
financial equilibrium of a planning operation conducted by an individual.24
The Act of 16 December 1964 which created the lease with construction is also
significant to show the junction between private property and the public use. It invited
owners within an area defined by the administration, to meet to conclude a construc-
tion lease with a dealer who will take charge of the realization and development of
the building. The public constraint was not far, since a recalcitrant owner would have
no choice but to witness the expropriation of his property (Josse 1965, 197). But as
professors Liet-Veaux and Schmidt say, ‘the lease with construction has the great
23 Especially CE 23 Oct. 1963 Veuve Musy et CE 12 June 1970 SCI Le Pré-Juge.

24 See the examples given in: Domestici-Met 1981, 234–236.
74 A. Deroche
merit of combining the state of ownership and the function of builder’ (Liet-Veaux
and Schmidt 1965, 73)25 , a function whose social utility is known in the mid-1960s.
A new land law on 30 December 1967, titled ‘Of the action of the private owners’,
was enacted to curb the growth of the urban population which was still exceeding
the pace of construction. On the model of rural land consolidation, the legislator
authorized the establishment of associations of landowners, called “urban land asso-
ciations”, with a view to regroup and build plots, without requiring the unanimous
agreement of all the owners, the State being able to force minority opponents (Dupey-
roux 1967, 85).
This evolution will tend to go beyond the opposition between the individualistic
powers given by the civil code and the public utility, which would give way to the
general interest, a more comprehensive and flexible concept, devoting a certain social
purpose to property (Aubert 1979, 30).
Many other laws could still be mentioned that would go in the same direction.
Nothing better illustrates their number and scope than their collection in codes, such
as the Code of Town Planning and Housing in 195426 or the Rural Code in 1955,27
today voluminous, which draw regimes of property well removed from the droit
commun enacted by the civil code in 1804.
The theory of the social function of property, although still questionable on this or
that point, is not without general relevance to analyze this heavy body of legislation.
What was its echo in the doctrine?
3.2 The Doctrinal Reception of the Social Function

of Property
The social function of property being a doctrinal notion conceived to qualify reality,
it is necessary to ask in what way scholars have welcomed it. After an expansion
phase until the 1970s (A), the theory of social function then marks a decline (B).
3.2.1 The Expansion Phase
If at first the academic doctrine was suspicious of Duguit’s theory, then it showed
greater openness.
25 The building minister of the time, Jacques Maziol, will qualify the 1964 law as “the last hope for
private property” (quoted in Laborde-Lacoste 1965, 378).

26 Decree of July 26, 1954. In the 1970s, this code split into two: Urban Planning Code and Con-
struction and Housing Code.

27 Decree of April 16, 1955.
3.2.1.1 The Initial Mistrust of the Doctrine
We know that the conception of the property of Duguit was, during his lifetime,
poorly received by his peers, the privatist doctrine reproaching him for his excesses,
his systematic character and his total break with tradition (Hakim 2011, 90, 101–103;
Gilbert 2008, 104).28
This criticism was still expressed shortly after the death of Duguit, as in the first
issue of the Archives of Philosophy of Law, published in 1932 and devoted entirely
to the work of the jurist from Bordeaux. Professor Achille Mestre summed up quite
well the dominant critics of the doctrine of the social function of property. If he gave
credit for being in the direction of the real tendencies of the law, he reproached its
exaggeration. Mestre admitted that property carries with it responsibility and duties,
particularly that of not illegally harming others. But that did not go so far as to reduce
the property to a social function, the interests that it served keeping a private and
individual character for the most part (Mestre 1932, 163–173).
Subsequently, others have defended the subjective right of ownership, the most
famous of which is undoubtedly the Dean Georges Ripert.29
In several works of reflection on the civil law, Ripert firmly supported the rel-
evance of the property inherited from the Civil Code. About Article 544, he says:
‘This text, written more than a century ago, retains all its value of principle and no
political regime has dared to modify it’ (Ripert 1949, 193). The owner is undoubtedly
responsible in case of wrongful exercise of his right, but all that is not forbidden is
allowed: “No subjective right is absolute since it is determined by the law or the
contract in its object and limited in its exercise. But all right is by its very nature
selfish in the sense that it is given to satisfy the personal ends of man” (Ripert 1949,
196).
Moreover, even the legal measures regulating property are not sufficient to lay the
foundations for a social conception of law, because ‘the public interest that motivates
them, it is most often the very interest of the owners’ (Ripert 1955, 195–196). In
general, Ripert had little taste for the mystique of the general interest, behind which
he sees only a struggle for private interests, which the social function of property
cannot conceal (Ripert 1955, 231).
Ripert delivered an indictment against the jurists and thinkers—Duguit, Trotabas,
social Christians, Josserand or Gurvitch—who for half a century had been fighting
against the individual right, without being aware of the serious political significance
of their doctrines (Ripert 1949, 194). Turning to that of the social function of property,
he denounced the theoretical confusion that it operates between the very definition of
property and the affectation of property. He also reproached its hypocrisy, a fictitious
argument used by proprietors to exonerate themselves in the hope of escaping moral
28 These criticisms have been expressed in certain studies especially devoted to Duguit’s theses
during his lifetime, as: Gény 1922. On contradictory opinions as to how to qualify the doctrine of
Duguit in general, see: Bonnecase 1933, 250.
29 Ripert relies on other contemporary authors favorable to the subjective right, in particular the
Belgian professor Jean Dabin, whose book The subjective right (Dabin 1952) opens with a long
answer to the theory of Duguit.
76 A. Deroche
condemnation or the collectivist threat. But, Ripert warned, ‘in times of political
turmoil, these legal theories that were thought to be ingenious and harmless reveal
their harmfulness. They serve as a pretext for the destruction of individual rights’
(Ripert 1949, 196–197).
His conclusion is clear: ‘Property is not a function, nor even, as it is sometimes
said, a function right; it’s an individual right, so sovereign’ (Ripert 1955, 236).
However, the counter-offensive of Ripert in favour of the subjective right proves
a contrario that there is need to hurry, which besides, he does not hide.30 Over time,
academic doctrine became far from insensitive to Duguit’s theses.31
3.2.1.2 The Opening of the Doctrine
The acceptance by the academic doctrine of the social function of property was
greater after the death of Duguit, to culminate in the two decades following the
Second World War. The social pressures and legislative changes in the property
regime are such that Duguit’s analysis reveals a great deal of relevance.
Nevertheless, very few authors fully accepted this doctrine. One can quote that the
Bordeaux teacher and former pupil of Duguit, Marcel Laborde-Lacoste, for whom
the legislative evolution devoted the ideas of his master (Laborde-Lacoste 1967,
398).32
The great majority of the doctrine did not unreservedly endorse the theory of social
function and considered that if property includes an incontestable social function,
it is not reduced to it. Civil writers readily admitted, especially after the Second
World War, the social function of property as a trend, but underlined the incomplete
character of this evolution (see, e.g., Planiol and Ripert 1952, 15; Savatier 1952, 204;
Mazeaud et al. 1956, 1030–1031; Julliot de La Morandière 1957, 6–7; Marty and
Raynaud 1965, 40).
For example, the Beudant Civil Law Course, in its 1938 edition, indicated, refer-
ring inter alia to Duguit: ‘Since the Civil Code the individual property has gradually
changed and the evolution continues, tending (…) to make property a social function’
(Beudant 1938, 278). But in the same vein, Beudant’s manual warned: ‘One may
fear … that limitations on property, in order to satisfy one or another social interest,
become sufficiently numerous and serious enough to annihilate the essential social
function of the property, which is to stimulate the individual effort, to favor the family
30 This is illustrated by his 1936 work, reissued in 1948: The Democratic Regime and Modern Civil
Law 206–268; see also: Ripert 1950, 1.

31 Ripert himself is ambiguous in some words: ‘The law is not a social function; it is given to allow
to fill it. The one who uses it badly no more compromises the value of this right than the worker
who uses a good tool badly does not condemn the industrial enterprise’ (Ripert 1955, 238).
32 The author testifies to the evolution of the political and professional discourse, quoting this
statement of the president of the Union Nationale de la Propriété immobilière (UNPI) [National
Union of Real Estate Property] at the 58th national congress of the association in 1966: ‘From the
current society, in the Contemporary economic, social and political trends, property is defined by
its functions and no longer as a right in itself” (Laborde-Lacoste 1967, 400).
by rewarding the virtue of saving, inspired by the concern of descent’ (Beudant 1938,
279). Beudant’s manual thus points to the limits of the concept of social function,
which is likely to receive sufficiently diverse and contradictory contents so as not to
resolve all conflicts over property.
In this sense, more than to Duguit, some authors referred to the Thomistic Christian
conception of property, which operates a more exact and reassuring synthesis between
the social function and the subjective right. Such is the case of Paul Coste-Floret,
a lawyer and teacher from Montpellier but also future influential politician of the
Christian Democratic movement under the Fourth Republic. In his thesis of 1935,
he proposed a theory of property based on natural law and balanced between the
personal principle and the social function (Coste-Floret 1935, 71–74, 225–266). In
1945, Professor André Rouast, in front of the Henri Capitant association, defended
this moderate solution of the dual aspect, individualistic and social, of the property,
formalized by Thomas D’Aquinas.33 Shortly after, the Mazeauds, in their famous
textbook of civil law, also joined the doctrine of the Church.34 In 1959, paying homage
to Duguit, the Bordeaux professor Brèthe de La Gressaye nevertheless recommended
to follow the synthesis between society and the person argued by Aristotle and
Thomas D’Aquinas, to whom Duguit had come closer at the end of his life (Brèthe
de La Gressaye 1959, 218–219).
It is the dramas of war and the dangers of totalitarianism that explain the refusal
of jurists to entirely sacrifice individualistic property to the idea of a social function,
which is otherwise admitted. Thus, in 1945, Professor René Savatier recognized the
shift of ownership towards public law and places the socialization of law at the heart
of his brilliant reflections.35 But he insisted, after the Nazi drama, on the necessity of
the subjective rights to protect the most sacred things in man, and to reproach Duguit
for having been wrong to deny them (Savatier 1945, 8–10). In 1948, Professor Léon
Julliot of La Morandière predicted that the Civil Code Reform Commission, fearing
that the social function would lead to a totalitarian regime, would stick to a happy
medium and retain ownership in its traditional subjective aspect, striving to regulate it
in a social spirit (Julliot de la Morandière 1948, 123). Significant is also the evolution
of Gaston Morin, professor in Montpellier. In 1920, he defended in his collection The
Revolt of Facts Against the Code, a very socializing position: “Property becomes a
33 ‘The fundamental idea that must be at the base, in my opinion, is the dual aspect that the right of
ownership entails. It is at the same time an individual prerogative, which allows the development
of the human personality and a social function which allows all the people to have their sustenance
by means of material things. A double aspect that is far from new, it has been brought to light since
antiquity, it was in the Middle Ages by St. Thomas Aquinas, it has been by many modern authors.
The mistake is, in my opinion, to forget one of these aspects to see only the other. […] The mistake
of many of our contemporaries is to consider only the social function while forgetting that the right
of property also has an individual prerogative value’ (Rouast 1946, 52).
34 ‘The Church has always taught that man is only the depository of the riches that are in his hands;
he must manage them in the interest of the common good, and he will one day have to give an
account of this management. If this doctrine were followed, the right of individual property would,
of course, escape the attacks of which it is today the object’ (Mazeaud et al. 1956, 1032).
35 Particularly, Les métamorphoses économiques et sociales du droit civil d’aujourd’hui published
in four volumes in 1948, 1952, 1959 and 1964.

78 A. Deroche
social function. It involves duties” (Morin 1920, IX). In 1932, in an article devoted to
the work of Duguit, he seemed to relate to the more nuanced position of theologians:
“For theologians, property is not a social function, it has a social function, but also
an individual utility function for the owner whose subjective right is maintained
[emphasis in the text]” (Morin 1932, 158). Finally, after the Second World War, he
expressly rejected Duguit’s doctrine, holding that despite all the restrictions imposed
on the owner in the name of the collective interest, property remains a subjective right
and still retains a degree of autonomy for its owner (Morin 1945, 94–95; Morin 1950,
13).
The resistance of the individualistic character of the right of property has even
been able to provoke a certain disillusionment among some of the partisans of its
social conception.
3.2.2 The Recoil Phase
The first disillusions of a part of the doctrine are manifested in the 1970s. But it is
the year 1982 which marks a serious stop of the theory of the social function of the
property.
3.2.2.1 Disillusionment of Some of the Doctrine
Following a seemingly trivial decision of the 1971 Court of Cassation,36 Professor

Antoine Pirovano noted the general failure of the theory of the social function of
rights: ‘With regard to the right to property and its dismemberments, it is necessary
to recognize that despite the intense legislative movement of recent decades (regu-
lation of leases, spatial planning, public utility easements, urban planning, etc.) the
prevailing climate in case law has not changed in proportion […]. In our opinion, the
“social” nature of rights has scarcely been verified over time, in spite of numerous
affirmations of principle tending to prove the opposite. The enormous mass of texts
concerning both property ownership and industrial or commercial enterprises has not
prevented the attributes of the owner of real estate or the means of production from
being maintained and even, in some respects, reinforced’ (Pirovano 1972, 67, 70).37
Disillusion seems even greater among urban planning specialists, who call for
a vigorous conceptual renewal of property. Thus, in 1975, Jacques de Lanversin
stresses that the prophetic value of the doctrine of Duguit has been demonstrated by
the legal and social reality, but that since then, apathy has settled in the reflections
on the property and that the French civilians are not unwilling to denounce the
36 The Court of Cassation dismissed a tenant baker who had wanted to impose on his owner the
replacement of an old oven by a modern oven.

37 It matters little that here the author links the theory of the social function of rights to Josserand,
another famous jurist of the inter-war period, rather than to Duguit.

cult of property of the civil code. He argues for a resolutely finalist conception of
goods which determines, for each category of goods, the margin of autonomy left
to the private interest and the exact volume of limitation for the general interest (de
Lanversin 1975, 46, 58, 138). Similar ideas were defended the same year by another
urban planner, Jean-Paul Gilli, in a book entitled: Redefining Property (Gilli 1975). A
few years later, the civilian Jean-Luc Aubert, observing the survival of individualism
and the insufficient consideration of the social purpose of real estate, expressed a
similar position, albeit more moderate (Aubert 1979, 21–22, 30–31).
Edgar Pisani, the former minister of General de Gaulle in charge of land policy
in the 1960s, who has since become a member of the young Socialist Party, exposed
a vast project of land revolution in his book Land Utopia in 1977. Contrary to
his declarations as minister,38 he no longer proposed to regenerate private property
by the social function. Inapt by nature to fulfill such a function, private property
is irreparable and must be gradually abolished to pave the way for a real rational
development of space (Pisani 1977, 95, 106). Despite the arrival of the Socialists in
power in 1981, the idea will remain utopian.
3.2.2.2 The Year 1982 and the Stopping of the Social Function
of the Property
The year 1982 marks a turning point in the history of property rights. That year,
the Constitutional Council, guaranteeing the respect of the principles and laws of
constitutional value by the legislator, and the European Court of the human rights,
in charge of the respect of the European Convention for the Protection of the Human
Rights of 1950 and its additional protocols by the signatory States, including France,
each gave decisions which reaffirmed the fundamental value of the right of ownership
as a subjective right and explicitly included it at the highest level of the hierarchy of
norms.39
It is in this sense that the French doctrine interprets these decisions unanimously,
whether to grieve40 or to congratulate them (Favoreu 1982, 407; Mestre 1984, 1;
38 See quotation reported in Laborde-Lacoste 1967, 401.

39 The Constitutional Council invalidated, as unconstitutional, certain articles of the law of nation-
alization of companies voted by the young socialist and communist majority. On this occasion, he
confirmed “the full constitutional value” of the 1789 Declaration of Human Rights “with regard to
the fundamental character of the right of ownership”, despite the evolutions of property marked by
limitations required by the general interest (Decision No. 81-132 DC of 16 January 1982, [16]).
As regards the European Court of Human Rights, in the case of Sporrong and Lönnroth v. Swe-
den, it found that by striking, for a long time and without compensation, certain immovables of
the applicants to expropriate, Sweden had broken the “right balance between the demands of the
general interest of the community and the imperatives of safeguarding the fundamental rights of
individuals”, including the “right of ownership” protected by Article 1 of the 1st Additional Protocol
to the European Convention on Human Rights (ECHR), Plenary Court, 23 September 1982, Nos.
7151/75 and 7152/75, § 69 and 73; see also Sudre 1988, 71.
40 For example, Robert Savy of Limoges: ‘Rejecting history, the constitutional judge returns to an
absolute conception of property that political thought, positive law and social reality had dismissed’
80 A. Deroche
Zénati 1985, 171–172; Morange 1988, 110; Zénati 1993, 305–306).41 These deci-
sions dispel a long-standing doubt that had settled in the minds of jurists after the
constituents of 1946 and 1958 had failed or renounced the renewal of the defini-
tion of the right of ownership in relation to Article 17 of the Declaration of human
rights of 1789.42 Conversely, in 1982, according to Professor Fernand Bouyssou,
the Constitutional Council delivered a “panegyric of the right of ownership, perhaps
unprecedented in the legal literature for ages” and, joined to the Sporrong and Lön-
nroth decision of the European Court of Human Rights, leads to a “contemporary
reaffirmation of the right to property, at a time when its defenders themselves feared
that it had already disappeared” (Bouyssou 1984, 232, 235).
This evolution must be read in the light of the more general context of the
changeover of France in the era of fundamental rights, erected as a bulwark against
the encroachments of the legislator by the Constitutional Council since its famous
decision of 1971 relating to the freedom of association. France had begun its entry
into the “religion” of human rights.
Does this mean that from 1982, one returns to the absolute character which could
have been property’s main characteristic in the XIXth century? Not at all. On the
contrary, the defenders of individual property soon disillusioned with new restrictive
laws, validated by the Constitutional Council. Examples include the Act of 1 August
1984 which allowed for the administration to ban the owner of a farm fund from
exploiting it or Act of 18 July 1985 that created an urban pre-emption right in favour
of local authorities, with a much wider scope than the old pre-emptive rights in
ZADs and ZIFs (Carrias 1985, 293). The evil is deep’, says a commentator on this
law (Périnet-Marquet 1986, 134; Luchaire 1987, 128–135; Atias 1985, 122–123).
Similarly, in 1995, concerning the law on habitat diversity and the decision of the
Constitutional Council on it, Hélène Pauliat, professor in Limoges, had noted that, the
right of ownership is subject to “repeated attacks which are very widely accepted by
the supreme judge, relayed by the administrative and judicial judges” (Pauliat 1995,
285; Lachaume and Pauliat 1999, 373–391). At the European level, there is also the
judgment of the Court of Justice of the European Communities of 22 October 1991
(Georg Von Deetzen v. Hauptzollampt Oldenburg): “Fundamental rights, in particular
the right of property, do not appear as absolute prerogatives but must be taken into
consideration in relation to their function in society. It follows that restrictions serve
objectives of general interest and do not constitute, in the light of the aim pursued,
an excessive and intolerable intervention which would undermine the substance of
the right guaranteed” (Bergel 2000, 80–81).
in ‘La constitution des juges’ (Savy 1983, 107). Robert Savy is moved by the risk of unconstitution-
ality of many provisions of the law of expropriation and urbanism. It is not trivial that this anxiety
comes from a planner.
41 This article summarizes the main contributions of the author’s thesis defended in 1981 under
the title Essay on the Legal Nature of Property: Contribution to the Theory of Subjective Law, an
unpublished thesis, but a landmark in the contemporary doctrine. See also, Atias 1985, 13–14; Terré
1985, 48–49; Zénati-Castaing 2006, 445–446; Revet 2004, 24–25.
42 The law historian Jean-Philippe Lévy, in his Histoire de la propriété (Lévy 1972, 114), could
even conclude: ‘Property is no longer placed in the rank of human rights’.

All this explains why scholarship did not entirely give up on the expression ‘social
function’ (e.g. Tomasin 1991, 50–55; Périnet-Marquet 2004, 405; Mallet-Bricout
2014, 24–25). But the mentions often remain marginal and especially, from now
on, it is within the framework of the subjective and individual competing rights that
limitations to the ownership will be placed, and this was not the Duguit’s perspective.
Already after the Second War, Gaston Morin, rejecting the functionalist theories
of Duguit and Josserand, had perceived this evolution: “It is not a socialization of
property that we are currently witnessing, but the birth of new, recognized individual
rights to the human person and which dismember property rights” (Morin 1950,
15). And Morin to quote the right to life, which would base the law on rents or
the obligation of cultivation of the grounds, or the labor law, which would base the
legislation on the merchant and the farmer.43
Thirty years later, this analysis receives full confirmation. In 1982, the legislator,
embodied by the new socialist and communist majority elected in 1981, reformed
the relationship between landlords and tenants in the so-called “free” sector, which
lies outside the scope of the 1948 act and the field of habitations à loyer modéré
(HLM) [low-rent housing]. The Act of 22 June 1982 brought new rights to tenants to
guarantee its stability in housing, under the aegis of a “right to housing” (Saint-Alary
1982, 239).
It is true that the competitive nature of subjective rights does not rule out, as
a matter of principle, any idea of the social function of property, which may even
paradoxically come back as a criterion of arbitration between them. This is Hélène
Pauliat’s analysis of the right to decent housing, set as an objective with constitutional
value by the Constitutional Council in 1995.44 She argued that this right “definitively
consecrates the social function of the right of ownership” (Pauliat 1995, 286). But
Hélène Pauliat concludes that this posed, in the end, the problem of hierarchy within
fundamental rights (Pauliat 1995, 288).45
43 Same idea in René Théry, ‘De l’utilisation à la propriété des choses’ in Le droit privé… [mélanges
Ripert], see above, 1950, 28–29: in the status of rural rent or the law of 1948, ‘the landlord is not
a civil servant of society, he is only stripped for the benefit of another individual; as for the latter,
farmer or tenant, his “useful domain” is no less “egoistic” than the property of the nineteenth century.
[…] The property here has for direct function the personal fulfillment of the individuals, and it is
only by this detour that it will serve (undoubtedly) the general interest. We thus return to a very
traditional conception: and if the rights over things pass from an old master to a new master, it is
only to be more faithful to it’.
44 Since then, the Act of 5 March 2007 instituting the right to opposable housing has tried to make
this right a reality by allowing people without decent and independent housing, and considered as a
priority by law, to be given one by the administration and justice (JCP gén. 2007, Actualités n°123).
But note that this right is enforceable only to municipalities and public social housing institutions,
not to private owners of housing that would be vacant. In 2009, the State Council, the supreme
administrative court, devotes its public report to the question: Droit au logement, droit du logement
(Paris, La documentation française 2009).
45 Contradicting the analysis of H. Pauliat and supporting the persistent failure of the theory of the
social function of property in positive law (Logéat 2011, 245–268).

82 A. Deroche
In other words, if there is a return to the social function of property, it remains

within the framework of legal subjectivism, which Duguit’s doctrine denied radically.
In the best case, it would be only a biased and ambiguous victory of this doctrine.
Perhaps it is for this reason that the doctrine of the social function has never been
able to regain the prestige that it had in the middle of the XXth century.
Thus, the most sociologist of the French jurists, Jean Carbonnier, while he under-
lines the undeniable success met by this doctrine at this time, finally rejects the idea
of decadence of private property, noting that it has been able to live with limitations
that have been brought to it and which are not sufficient to characterize a “function-
alization of the owners” (Carbonnier 1995, 140; 2001, 356). At the beginning of the
1990s, Carbonnier even wondered about the “narrow (center-left style) character” of
French debates on the scale of a world dominated by economic liberalism from the
United States (Carbonnier 1995, 149).
In 2009, a group of academics, gathered within the Association Henri Capitant
under the direction of Professor Hugues Périnet-Marquet, proposed a reform of the
law of goods. If he suggested abandoning the formula “in the most absolute way” of
Article 544 of the Civil Code, his new definition of property is hardly less absolutist
than the old one: “Property is the exclusive right and perpetual to use, enjoy and
dispose of things and rights. It gives the holder absolute power subject to the laws
that regulate it” (Périnet-Marquet 2009, 118–119).46 In his commentary, Professor
Philippe Malinvaud justified the prudence of this proposal through the declaration of
1789, the Protocol of the ECHR of 1950 and the jurisprudence of the Constitutional
Council (Périnet-Marquet 2009, 41).
More recently, even if he speaks about Josserand, Professor Louis d’Avout finds
that the idea of the social function of rights has not lastingly convinced (d’Avout
2014, 30). In an inspiring article (Chazal 2014), Professor Jean-Pascal Chazal grieves,
reproaching the French contemporary doctrine for ignoring the political and social
issues of property to lock itself into technical controversies, albeit lively but that
come under a same dogmatic consensus around the liberal individualistic theory
of property. However, if Chazal calls for an abandonment of this theory considered
obsolete and for a doctrinal regeneration, it is not to return to Duguit—just mentioned
in a historical and marginal way—but through an import of the American pragmatic
doctrines.47
Does the destiny of the doctrine of Duguit in France thus verify the proverb
according to which no one is a prophet in his country? It is certain that the French
legal system has never abandoned the subjectivist conception of property. At best,
it has lost its exclusive place to give way to a mixed concept combining individual
subjective right and social function, at the end of an evolution that Duguit will not
have had time to see.
Both legislation and academic doctrine have remained ambiguous and do not
correspond to Duguit’s uncompromising analysis. But this ambiguity does not reveal
46 Thisreform proposal has remained unfulfilled to date.

47 It
is too early to know if this call will be heard. For the moment, he has met with a refusal in
Dross 2015.
the profound shock that the twentieth century will have subjected to the liberal and
individualistic doctrine of property inherited from the previous century. And Duguit
certainly contributed—albeit with others—to this shake-up.
From the 1980s, the social function of the property appears dated. The doctrine is
losing interest. For what reasons? Intellectual conservatism, partial failure in positive
law, weariness before political and social reflections that seem exhausted in the eyes
of new generations of jurists, collapse of communism and triumph of liberalism
that move away the political threat hovering on private property, imperialism of
fundamental rights of subjectivist essence… One can multiply the hypotheses.
Today, Duguit is known in the law schools only for his theory of public service,
moreover superficially taught in administrative law. Few know him for his doctrine
of property. Does this mean that this doctrine has no future? It would be peremptory
to affirm it. Thus, we find that in the reflections on the “commons”, which, despite the
still experimental and poorly defined nature of this notion, are not foreign to France,
the thought of Leon Duguit is not without interest (see, eg, Parance and de Saint-
Victor 2014; Boccon-Gibod 2014; Rochfeld 2014, 351–369; Coriat 2015).48 More
generally, while some diagnose “the twilight of modern property” (Zénati-Castaing
2012, 225), the social function of the property has not yet made its last breath.
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Chapter 4
Duguit and the German Property Law
Tradition
Murray Raff
Abstract Léon Duguit and German jurisprudence share approaches to property

rights that embrace responsibilities as well as entitlements. The responsibilities asso-
ciated with an object of property are to be ascertained in light of its broader social
context. For Duguit this followed from the social function of property. In German
jurisprudence the principle of responsibility has been recognised by three schools of
thought: (i) the 19th century modern sociological style, (ii) the Historical School and
particularly its Germanist thinkers, and (iii) the long and deep tradition of modern
natural law. Duguit disagreed with all three German schools of thought. There is nev-
ertheless a coherence between the perspectives. Duguit has been noted in German
legal literature, most importantly concerning the actual influence of his theory of the
social function of property in revolutionary Russia, and the resonance of his theo-
ries in Germany with respect to transitions of the concept of private property during
World War I and the early years of the Weimar republic, attesting to his insights as
a modern sociological thinker. If Duguit were still writing today he would probably
embrace the current German approach and contribute to the urgent moulding of an
international conception of private property, especially with respect to land, that pro-
tects the ecological integrity of ecosystems expected by the international concept of
sustainable development.
Keywords Natural law · Historical School · War economy · Nationalisation ·

Weimar republic · Social responsibility · Stewardship
4.1 Introduction
The question of how legal systems should recognise the social and environmental
responsibilities associated with property interests is one of the most important and
urgent juristic issues of our times. Léon Duguit grappled with the issues of his times
within the same theme. Duguit’s work and German jurisprudence pursued deeper
M. Raff (B)
University of Canberra, Canberra, ACT, Australia
e-mail: murray.raff@canberra.edu.au
88 M. Raff
understanding of the need to find balance between the interests of the individual and
broader society in physical resources. Duguit is well known in German legal liter-
ature, often appearing in company with Rudolf von Ihering1 and Otto von Gierke,2
in discussion of the jurisprudence of the conception of property and ownership and
the powers associated with it, to demonstrate that human property relationships with
physical resources take place in a social context and carry private responsibility as
well as private entitlement.
Did Duguit influence the shape or content of German property law? In this respect
we must question which aspect of Duguit’s work? There are separable elements of
the overall theory of the social function of property [la propriété fonction sociale]
attributed to Duguit, as we can see in the fresh translation of Duguit’s famous Buenos
Aires lecture of 1911 published in this volume. Austrian Professors Brigitta Lurger
and Wolfgang Faber have attributed to Duguit and Josser and the emergence of the
doctrine against abuse of right with respect to property (Lurger and Faber 2011, vol 9
264 § 18). Under this doctrine property owners are liable if they exercise their rights
of property with the sole purpose of harming another person. In the German legal
system § 226 of the German Civil Code, one of the original paragraphs of the Code,
provides:
The exercise of a right is impermissible when the sole purpose is to cause harm to another.3
This provision against arbitrariness [die Schikane] in the exercise of any right,
including the proprietary right of ownership, is thus fundamental to German civil
law and could not be regarded as a controversial limitation on rights of property.4
Duguit’s contribution to development and acceptance of the doctrine of abuse
of right was, and was probably intended as a building block in development of his
1 Rudolf von Ihering [also Jhering] (1818–1892) was an eminent jurist of his era with widely
recognised expertise in the Roman law tradition. Initially a follower of the Historical School, Ihering
later became a critic of it when he developed a theory of legal naturalism. His major theoretical
work Der Zweck im Recht was first published in two volumes from 1877 to 1883—vol I of the
fourth edition (Breitkopf and Härtel, Leipzig, 1903) was translated and published in 1913 as Law
as a Means to an End (trans Husik, I). AM Kelley, New York (republished in 1968).
2 Otto Friedrich von Gierke (1841–1921) remains one of the most important jurists of his era. He
was a Professor variously in Berlin and Breslau (1871–87) and was the leading Germanist of the
Historical School. He is most famous in the English-speaking world for his historically oriented
work on the law of cooperative societies Das deutsche Genossenschaftsrecht [The German Law of
Associations], which was translated in three stages: (i) Maitland, FW (1900) The Political Theories
of the Middle Ages. Cambridge University Press, Cambridge; (ii) Barker, E (1934) Natural Law
and the Theory of Society 1500–1800. Cambridge University Press, Cambridge; and (iii) Gierke, O
(1977) Associations and Law—the Classical and Early Christian Stages (trans and ed Heiman, G)
University of Toronto Press, Toronto. Other major works by Gierke included Die Soziale Aufgabe
des Privatrechts [The Social Task of the Private Law] (1889) and his monumental three volume
Deutsches Privatrecht [German Private Law] (1895–1917).
3 The Bürgerliches Gesetzbuch [Civil Code] (Germany) was drafted over two decades and in 1896
passed by the German Parliament and promulgated. It took effect on 1st January 1900, the first day
of the 20th century from the German perspective.
4 For comparative study of the abuse of rights doctrine in French, German and Dutch law see van
Erp and Akkermans 2012, 219–224.

4 Duguit and the German Property Law Tradition 89
perspective that property has a broader social function, as does each individual, and
although the state could not directly force the property owner to perform that function
in a particular way, it could remove social protection of property that is not being
utilised in pursuit of its social function. This aspect of Duguit’s work has been treated
more controversially in German legal literature than his views on abuse of right.
4.2 Duguit’s Theories in the Soviet Union
The esteemed German scholar Norbert Reich drew attention to the inspiration found
in Duguit by the early Soviet theorists, Stučka and Gojchbarg, who formulated post-
revolutionary communist legal theory for the new Bolshevik republic (Reich 1972,
115–119; Raff and Taitslin 2012, 174–175). Gojchbarg wrote the foreword to the
1919 Soviet publication of Duguit’s Les transformations générales du droit privé
(Duguit 1912). Although Gojchbarg considered Duguit an enemy of socialism and
bourgeois from head to toe, in his assessment Duguit had the clarity of vision to
recognise the decline of individualistic civil law in bourgeois countries even if he
did not have the courage to draw the ‘obvious’ conclusion that with abolition of
private property and the emergence of a collective socialist state the social function
of property would be replaced by that of work within a context of social law (Reich
1972, 118–119). Duguit’s work was also referred to by Renner and by Pashukanis
and other Soviet authors (Raff and Taitslin 2012, 178–188).
4.3 Duguit’s Theories in Early 20th Century Germany
The view that property exists in a social context and is a source of responsibility
was already current in German legal thought in Duguit’s time. One may identify
theoretical and historical positions that supported this: (i) the modernist sociological
perspective represented by Ihering and Jellinek5 and could have included Duguit, (ii)
the Germanist intellectuals of the Historical School led by Gierke, and (iii) the modern
natural law tradition that may be traced to Grotius and Pufendorf, which underpins
the present German approach.6 At this point the relevant question is whether there
were relationships between these authors and Duguit?
Duguit was well aware of the 19th century German legal thinking of Ihering,
Jellinek and Gierke but considered his own work to differ from “the unsound German
theories of law” (Duguit 1901, 308). Ihering and Jellinek shared the error, according
to Duguit, of seeing the existence of the state as a precondition for the recognition
of normative statements as law backed by coercive force. If the state commands
complete authority to make laws, it is illogical to think of the rule of law as grounded
5 For an overview of Jellinek’s work see Raff and Taitslin 2012, 172–174.
6I explain these sources of the view in greater depth under Sect. 4.4.3.
90 M. Raff
in limitations placed by the state on itself because the state can always remove
those limitations. Duguit also disagreed with Gierke, whom he considered to require
separate legal personality for the state. Duguit considered that law precedes the
existence of the state. However, rather than being grounded in natural law, which
he saw as based in individualism, he asserted that law is antecedent to the state and
grounded in the law of social solidarity (Duguit 1901, 308–338).
Ulrike Wendeling-Schröder has presented the view that Duguit’s thesis of social
function resonated in Germany from the turn of the century through to the regulation
of the German war economy during World War I, debates in the course of demobili-
sation and proposals for socialisation of property in the Weimar period of the 1920s
(Sieling-Wendeling 1976, 86–89, 121–122). As the 19th century progressed, argues
Wendeling-Schröder, the explanatory power of natural law waned. For example, if
private property is explained by the exertion of labour in respect of the object of
property, who owns the product of an industrial process—surely not the workers
who made it? According to Duguit, the capitalists had the social function of amass-
ing capital and placing their business undertakings at disposal. If they failed in this
task they would disappear just as the aristocrats and clerics had disappeared in 1789
(Sieling-Wendeling 1976, 86–88). At the end of the 19th century German industry
was highly concentrated, particularly the energy, chemical and steel industries.7 The
gigantic industrial works were like small towns and were taking on the character of
communities (Sieling-Wendeling 1976, 77–78). The privileged, propertied position
of the capitalists was justified, in light of Duguit’s views, by their service to society
in driving economic growth.
The assertion of property as a social function became topical in Germany with
the challenges of coordinating a war economy in World War I, in the course of
demobilisation of the economy from a war footing following 1918, and in debates
about socialisation of the means of production during the Weimar years.
The idea that property inheres responsibilities as well as rights found legal expres-
sion in Germany’s progressive new post-war Weimar Constitution of 1919.8 Article
153 provided protection for property. The second paragraph provided for expro-
priation with compensation. These protections were interpreted widely by the Ger-
man Supreme Court,9 with the implication that any impairment by the state leading
to disadvantage with no corresponding advantage could amount to expropriation
(Sieling-Wendeling 1976, 107–111). This created a serious obstacle to the sociali-
sation movement in view of the drastic position of German state finances and the
economy following World War I. Additionally, Article 153 recognised responsibili-
ties arising from property:
7 For example, before 1914 95% of coal production in the Ruhr valley was controlled by the Rhine-
Westphalia Coal Syndicate: Sieling-Wendeling 1976, 76–77.

8 On the Weimar Constitution see generally Anschütz 1921. As an example of progressive aspects
of the Weimar Constitution, see the achievement of women’s electoral rights at the Federal level
in Weimarer Reichsverfassung [Weimar Constitution] (Germany) Article 17. The commentary of
Anschütz 1921 on this article is also very interesting.
9 der Reichsgerichtshof.
Property brings responsibilities. Its use shall at the same time be of service to the common
good.10
Thus it had already been recognised constitutionally that the dynamics of private
property operate in a social context.
When connecting these issues to Duguit, Wendeling-Schröder draws most sig-
nificantly on two contemporary authors, Heymann and Hedemann. Heymann11 had
been a permanent member of the Scientific Committee of the Prussian War Ministry,
which administrated war issues for the German empire. Heymann’s book was based
on a report prepared in that capacity (Heymann 1921, 5). The legislative structuring
of defence procurement and the legal underpinnings of expropriation measures and
regulation were developed with considerable attention to corresponding innovations
in England and France (Heymann 1921, 65–73). In Germany the industries critical
to participation in the war were cartelised. The state expropriated the resources these
industries needed, subject to a multi-factored formula for calculation of compensa-
tion, and the resources were then distributed by private syndicate organisations to
the firms within the industry (Heymann 1921, 75–77). This functional intersection
of public law and private law norms and institutions was lauded by Heymann, who
considered that valuable approaches had been developed with potential for peace
time as well (Heymann 1921, 5, 8–9), and in holding this view he was not alone
(Sieling-Wendeling 1976, 102–103). In justification of the unprecedented scale of
modern state intervention in the economy and private property relations Heymann
articulated a place for property that potentially was consistent with the social func-
tion propagated by Duguit, however Heymann’s justifications reached back to the
medieval past of trade guilds which he claimed also had a military dimension (Hey-
mann 1921, 13–15). Indeed Germany had striven for freedom of industry for only a
short time in the 19th century before the war brought the need for the most extensive
planned economy with central leadership (Heymann 1921, 15–18). In this context
institutions of private law such as private property retained only the appearance of
individual rights as the new industrial law approximated socialist demands (Heymann
1921, 20, 30). Indeed, to Heymann, the war economy appeared to have encouraged
the re-emergence of divided ownership with the state exercising a new ius eminens
in the control of private property useful for the war effort (Heymann 1921, 75).
Although Heymann could have found justification of these limitations of private
property in Duguit’s theory, and in the end the outcome is probably the same, at crit-
ical points he returned to patterns offered by the proprietary relations of feudalism
and the political economy of medieval society for legitimation and did not refer to
or cite Duguit (Heymann 1921, 12–17, 76–77).12
The period of transition from wartime to peacetime economy was a moment of
great vulnerability for Germany. The legal structure of the centrally-led planned
economy developed for war purposes, presented, in the weakened control of the
10 Eigentum verpflichtet. Sein Gebrauch soll zugleich Dienst sein für das Gemeine Beste.
11 Professor Wendeling-Schröder first refers to Heymann’s work at: Sieling-Wendeling 1976, note
41.
12 Heymann did however cite Gierke: for example, Heymann 1921, 14 note 2.
92 M. Raff
post-war German state, an opportunity for radical groups to seize and exercise total
control. One author cited frequently by Heymann in connection with transition of
the concept of property was Waldecker (1919). Waldecker was more critical than
Heymann of wartime expropriation and its processes. Waldecker nevertheless agreed
that the system established for war purposes could be improved and used in the
peculiar circumstances of post-war Germany and the Weimar republic as a tool for
socialisation of the means of production within a framework that would respect rule
of law. For Waldecker this approach to a reasonable state socialism (Waldecker
1919, 26, 147–149) would have been more acceptable than “communism with a
spiked helmet” (Waldecker 1919, 25–26, 139, 143).13 Waldecker considered that the
wartime system of expropriation represented an exaltation of the state that went far
beyond what theorists of the 19th century (Raff and Taitslin 2012, 164–165) could
have imagined, indeed was the product of a police state (Waldecker 1919, 12, 14),
and had conditioned the nation to a new attitude to property and the reasonableness
of expropriation by the state (Waldecker 1919, 146). So much so that the extremes of
political left and right both saw expropriation as a valuable tool for the achievement
of their objectives:
Yet more important is recognition that the extreme right has taken on the same idea …: the
individual is nothing except in and through the group, and hence only the group idea can be
put into the service of subjective intentions (Waldecker 1919, 143).
Waldecker longed for return to a social compact of German society noted for
social trust and social justice (Waldecker 1919, 141–149). In his discussion of the
rights of the individual and definitions of property Waldecker, like Heymann, did
not cite or refer to Duguit at all. Waldecker relied extensively on Gierke (Waldecker
1919, 28, 53, 76, 129) and on natural law streams of thought, Grotius (Waldecker
1919, 15), the natural law code of Friedrich the Great, the Allgemeines Landrecht
für die Preußischen Staaten [General Prussian Code] of 1794,14 (Waldecker 1919,
75, 86) and the French Declaration of the Rights of Man and Citizen of 26 August
1789 (Waldecker 1919, 15). Predominantly, Waldecker’s identification of a German
approach to property that emphasises social context relied on German historical
sources and analogies, as did Heymann’s. However, in contrast, for Waldecker these
13 Waldecker makes clear allusion to the Bolshevik revolution in Russia in October 1917. Germany
had experienced her own revolution with uprisings of sailors and soldiers, worker occupation of
workplaces, formation of soviets to govern neighbourhoods, declaration of a German republic on 9
November 1918 and the abdication of the emperor on 28 November 1918 from his place of exile in
the Netherlands. The political outcome in the Weimar republic in Germany was, initially at least,
a social democratic government unlike the outcome in Russia which led to the emergence of the
USSR.
14 The General Prussian Code is available with excellent introduction and notes in: Hattenhauer and
Bernert 1994. Electronic text of the Prussian Code is available at http://www.koeblergerhard.de/

Fontes/ALR1fuerdiepreussischenStaaten1794teil1.htm and http://www.koeblergerhard.de/Fontes/
ALR2fuerdiepreussischenStaaten1794Teil2.htm (Accessed 6 April 2018). A digitised version is
now available through the website of the Preußischer Kulturbesitz of the Staatsbibliothek zu
Berlin at http://digital.staatsbibliothek-berlin.de/suche?queryString=PPN646281224 (Accessed 6
April 2018).
were not entirely feudal sources. For Waldecker the best historical example of the
German property concept consistent with a social compact that exhibited the balance
between “being for oneself and for each other” of German society noted for social
trust and social justice was found in the German city republics of the middle ages,
not feudalism (Waldecker 1919, 147).15
Finally, Wendeling-Schröder also placed emphasis on the work of Hedemann
(Hedemann 1922, 585–592) to support her description of the resonance of Duguit
in the transformation of the German property concept observed in the first decades
of the 20th century (Sieling-Wendeling 1976, 102–103 notes 77–80). Hedemann
also traced historical transition in the German legal concept of property, however
he commenced with the first publication of Savigny’s great work on possession
in 1803 (von Savigny 1803)16 and noted the emergence of a new emphasis on title,
specifically ownership, through the influence of enthusiasts for the abstract Pandectan
jurisprudence of the Roman law group of the Historical School. This influenced
expression of the concept of ownership in the first draft of the German Civil Code,
however this was moderated in the second draft into a concept more familiar for
the German jurist, confirmed by the eminent jurist Planck in his speech for the
government in the German Parliament (Hedemann 1922, 589 note 1). In Hedemann’s
view, however, by the time Planck spoke in the Parliament there had already been
radical transformation of the administrative power of the state and the reality was
one of significant state regulation of building, industry, forestry and fisheries and
the fostering of industrial cartels (Hedemann 1922, 587). With the expropriations of
World War I and cartelisation of war industries to service the military needs of the
state, it was no longer possible to speak of a ‘pure’, ‘inviolable’ or ‘absolute’ form of
property—the concept of ownership in the German Civil Code was now “anaemic”
(Hedemann 1922, 588).
With the revolution and the ‘self-administration’ and socialisation movements
that followed, Hedemann explained, the legal owner held only a formal title to the
property and his or her circle of freedom for practical economic decision making
was narrowed by three forces: (i) the group to which his or her commercial or
industrial activities belonged, (ii) cooperation with representatives of labour and other
economic groups, such as consumers, and (iii) governmental control (Hedemann
1922, 587, 590). Hedemann observed that the concept of property had evolved from
a concern about “having” the object to the question of controlling the object and
drawing benefits from objects constantly in economic motion—in this the owner
had emerged as a participant without exclusive decision making power. This is the
main point to which Wendeling-Schröder drew a connection with Duguit (Sieling-
Wendeling 1976, 102–103) although Hedemann did not actually cite or refer to
Duguit.17
15 Thesewere represented foremost by the Hanseatic cities of northern Germany.

16 Now available through the website of Bayerische StaatsBibliothek digital: http://reader.digitale-
sammlungen.de/de/fs1/object/display/bsb10553316_00005.html (Accessed 6 April 2018).
17 Hedemann did cite Austrian Marxian thinkers Anton Menger and Karl Renner: Hedemann 1922,
589–590 note 2.
94 M. Raff
In conclusion on this point, Wendeling-Schröder pointed out a parallel between

Duguit’s theory of the social function of property and transformation of the German
concept of property in the early decades of the 20th century. However, the contempo-
rary authors on whom Wendeling-Schröder drew, mainly Heymann and Hedemann,
did not attribute to Duguit any aspect of their observations about the transformations
they were observing. Heymann, and the main contemporary author on whom he
reflected, Waldecker, were much more inclined to seek parallels in historical Ger-
man relationships surrounding property such as feudalism and cited Gierke. One can
nevertheless see in the German experience of the early decades of the 20th century
the emergence of an attitude to a social function of property in which the depiction
made by Duguit resonates. This is particularly evident in Hedemann’s description
of the conditions that followed the German revolution but also in the harnessing of
private property for the war effort as described by Heymann and Waldecker, both
of whom expected the trend to continue. The expectation was that property within
the new conception would be made available by its owners to advance society in
exchange for participation in decision making about it and profits drawn from it—
this was their new social function (Sieling-Wendeling 1976, 103). This parallel with
Duguit’s work, the prescience of Duguit’s insight, was the point being made by
Wendeling-Schröder, not that the property law of the German empire had changed
direction through persuasion by his theories.
4.4 Recognition in German Jurisprudence of the Social

and Environmental Context of Property
We noted that three traditions in German jurisprudence have recognised a concept of

property that inheres the social context of the object with commensurate responsibil-
ities: (i) the modernist sociological perspective represented by Ihering and Jellinek
and could have included Duguit, (ii) the German historical school led by Gierke, and
(iii) the modern natural law tradition that may be traced to Grotius and Pufendorf,
which underpins the present German approach.
4.4.1 Sociological Perspective
Representing the modernist sociological perspective, we have this famous passage

from the influential work of Rudolf von Ihering, Der Zweck im Recht:
The individual interest of the owner already requires that he make orderly use of his property,
which at the same time corresponds to the interests of society. This circumstance alone is the
reason why society makes so few demands on private property …. It is thus not true that the
idea of ownership would encompass an absolute power of disposition. Ownership in such a
form cannot be tolerated by society and has never been tolerated. (von Ihering 1893a, 519;
von Ihering 1893b, 145).
4.4.2 Historical Tradition
From the Germanist group of the Historical School we have this famous passage by
Gierke:
When the concept of ownership is considered in isolation it cannot be viewed as an unlimited
right of dominion. Only in comparison with the other rights of property can it be described
as unlimited. If on the other hand it is to be measured beside the illusion of absolute power,
it carries limitations within its very concept today as well. It confers not arbitrary power
but power bound by right…. The power of the owner to deal with the thing at pleasure
is today narrowed through extensive limitations of free consumption, and in part virtually
eliminated. Here the continuation of the German legal idea reveals itself—ownership is
pervaded by responsibilities (Gierke 1905, 364–365).
Evidence of this principle of responsibility may be found in many historical

aspects of German property law. Whereas Heymann sought illustration of the prin-
ciple in the feudal past, Waldecker drew on the city republics of German history, as
I have noted above. For example, the need to register ownership of land in the city
books of Hanseatic cities, in Hamburg dating from before the 13th century, stemmed
from the need to record who was responsible for the land, such as the maintenance
of flood dykes on it, as well as private entitlement (Raff 2003, Chap. 2).
4.4.3 Modern Natural Law
The modern natural law tradition underpins the present German approach to the
question of powers and responsibilities of those who hold property interests. A post
World War II renaissance of natural law in pursuit of a higher source of legal right
and responsibility was inspired by reaction to the extremes and atrocities of the Nazi
regime and the legal positivism of the era, stimulating a revision of the interpretative
method of the German courts (Müller 1967, 13–16). In 1952 the German Constitu-
tional Court upheld dissolution of the Socialist Imperial Party18 in a judgment that
sought to elucidate the most fundamental values of the new Constitution. The influ-
ence of natural law was clear when the court observed that identifiable fundamental
values lie at the heart of the free and democratic constitutional order—“in the order
of creation humans have value in their own right and freedom and equality are lasting
basic values of state unity” (Socialist Imperial Party Dissolution Case, Bundesver-
fassungsgericht [German Constitutional Court], 23 October 1952 reported in (1952)
2 BVerfGE 1).
18 Sozialistische Reichspartei (SRP); founded 2 October 1949.

96 M. Raff
The recognition in the Weimar Constitution that responsibilities as well as rights

are implicit in the concept of property was reproduced into Article 14(2) of Germany’s
post World War II Bonn Constitution:
Property brings responsibilities. Its use shall at the same time serve the common good19
(Grundgesetz für die Bundesrepublik Deutschland [Basic Law of the Federal Republic of
Germany] Article 14(2)).
The natural law tradition also inspired court decisions with more direct relevance
to property in land. In the Measures of the Housing Department Case (Bundes-
gerichtshof [German Federal Court of Justice], 10 June 1952 reported in (1952) 6
BGHZ 270) the German Federal Court of Justice examined the question of whether
emergency housing orders were expropriations requiring compensation. Many of
the housing orders in question had been made after suspension of the Weimar Con-
stitution in 1933 and before the Bonn Constitution took effect in 1949. The court
found the protection of property is a principle that transcends positive legal text
[übergesetzlich] and thus the housing orders made in this interim period could be
tested against a general abstract principle of protection that also happened to find
textual expression in the Weimar and Bonn Constitutions (Measures of the Housing
Department Case, Bundesgerichtshof [German Federal Court of Justice], 10 June
1952 reported in (1952) 6 BGHZ 270, 275). The court analysed the natural law
property concept in detail, including its protection and the limitations of the object
of property deriving from its social and environmental context; limitations relative
to the ‘nature of the thing’ (Measures of the Housing Department Case, Bundes-
gerichtshof [German Federal Court of Justice], 10 June 1952 reported in (1952) 6
BGHZ 270, 278–280).20 The court concluded that in the catastrophe of World War
II the emergency orders would have been constitutionally valid expressions of the
concern that socially responsible proprietors would have shown for others and not
expropriations, had the orders not suffered other legal defects.
In the Economic Planning Case, (Bundesverfassungsgericht [German Constitu-
tional Court], 20 July 1954 reported in (1954) 4 BVerfGE 7) the German Constitu-
tional Court described the image of the citizen found in the Constitution:
The human image found in the Constitution is not that of an isolated sovereign individual.
Far more, the Constitution has settled upon the tension between individual and society, in
the sense of the social connectedness and social bonding of the person, without encroaching
upon the intrinsic value of the person (Economic Planning Case, Bundesverfassungsgericht
[German Constitutional Court], 20 July 1954 reported in (1954) 4 BVerfGE 7, 15–16).
This passage is frequently referred to by the courts when discussing the citizen’s
social responsibilities in connection with property (Führ 1998, 1, 9). Commentators
have emphasised the compatibility of the limitation in favour of social responsibility
with liberalism and private enterprise. Kimminich, for example, pointed out that for
Adam Smith the good of all would best be served by unlimited free trade in private
property and thus for Adam Smith as well the highest object of private property is
19 Eigentum verpflichtet. Sein Gebrauch soll zugleich dem Wohle der Allgemeinheit dienen.
20 Note the court’s discussion at 278 of the General Prussian Code.
achievement of the common good (Kimminich 1998, § 153).21 The text of Article
14(2) of the German Constitution is thus considered one textual expression, albeit a
very important one, of a deeper well established natural law principle: Article 14(2)
is not itself the source of the responsibility. Many commentators see such a firm
relationship between private property and the need for the use of it to contribute to
the common good that Article 14(2) might well be superfluous.
Modern natural law emerged in the Enlightenment and underpinned the great
liberal revolutions in the United States and France.22 Hugo Grotius (1583–1645)
was its first and greatest exponent, largely through the influence of his treatise The
Law of War and Peace (Grotius 1625).23 In the steps of Grotius the natural law
tradition moved ever further from justification in divine sources toward secularisation
(Lipp 1980, 134). Many relevant strands of Grotius’ work were brought together by
Christian Thomasius (1655–1728) in his 1707 preface to the first German edition of
Grotius’ masterpiece (published in Grotius 1625).24 Thomasius explained that natural
law was no longer a jurisprudence to which positive law should merely correspond but
the true source of the civil law itself (Thomasius 1707 in Grotius 1625, § 15). It exists
in ‘the nature of the thing’ itself (Thomasius 1707 in Grotius 1625, §§ 15 and 40),
from which it is to be derived through critical reason (Lipp 1980, 136). In the course of
the Enlightenment the conception of reason itself changed with transformation in the
methods of the natural sciences, mathematics and geometry (Lipp 1980, 130–133).
Indeed, Thomasius explained that the method of Grotius’ work was modelled on that
of the mathematicians (Thomasius 1707 in Grotius 1625, § 58). Sociability is the
first principle of a modern Natural Law so ascertained, from which all deserving the
name law could be derived (Thomasius 1707 in Grotius 1625, §§ 7–8; Lipp 1980, 141
note 41).25 Although this principle might appear human centred, it does not follow
that Grotius had removed nature from the equation. Indeed, nature’s status as the
source of natural law was emphasised—the mother of natural law is nature herself,
and God created nature (Thomasius 1707 in Grotius 1625, § 16). Human abilities
not otherwise shared in nature, such as speech and reason, are as much a source of
enduring responsibility as they are of law. That present generations have natural law
responsibilities to future generations is implicit in Thomasius’ observation, no doubt
21 The later commentary of Depenheuer in this source does not repeat the point. This might strike us
as paradoxical in the wake of economic neo-liberalism, however, Smith wrote in an era of burgeoning
utilitarianism and for him “… utility and the common good [were] the criteria of morality and good
government”: Stein 1982, 667, 679.
22 For a brief overview of classical natural law, in contrast to modern natural law, see: Raff 2003,
122–126.
23 This 1950 edition is based on the first German edition of 1707, with the famous Preface by
Christian Thomasius. The text of Grotius in the 1707 German edition was translated from the Paris
edition of 1625. Grotius fled Holland for Hamburg in April 1632 and lived for three years in exile
in Germany before his appointment as Swedish Ambassador in Paris. He died in the Hanseatic City
of Rostock en route to Lübeck.
24 Thomasius was the undisputed doyen of the German early Enlightenment: Luig 1982, 177–178.
25 Paradoxically, Duguit rejected natural law because he saw it as obsessed with individual rights
and chose instead to base his theory on social solidarity.

98 M. Raff
shared by Grotius, that citizens and nations prejudice their long term advantage and
that of their progeny when for short term gain they breach the civil law and the law
of nature (Thomasius 1707 in Grotius 1625, § 18).
The influence of the natural law theories of Samuel Pufendorf (1632–1694)
reached the drafting of the United States Constitution,26 the Prussian General Code,
the German Civil Code and the statements of civil rights found in the Weimar Con-
stitution of 1919 and the post-war Bonn Constitution of 1949 (Randelzhofer 1983,
9–10). Most distinctive among Pufendorf’s theories is his articulation of natural law
derived from the social responsibilities and duties that humans owe to each other.
His treatise on this topic, De officio hominis et civis prout ipsi praescribuntur lege
naturali [On the Responsibilities of Humans and the Citizen According to the Law
of Nature] (Pufendorf 1673) was used as a textbook for more than 100 years equally
in Sweden, France, Switzerland and Germany (Thieme 1986c, 939). Pufendorf iden-
tified the sources of natural law as (i) nature, revealed in light of human reason, (ii)
positive law27 and (iii) divine revelation. As with Grotius, for Pufendorf the social
life of humans is the first necessity and thus the legitimacy of a principle of natural
law may be tested by human reason beside the highest aim, the continued existence
of human society and the citizen’s peaceful co-existence within it (Pufendorf 1673,
12–13 (Introduction), 48 (book 1, Chap. 3, § 9), 50 (book 1, Chap. 3, § 13)). All
other natural law principles, rights and responsibilities may be derived from this
fundamental observation, which follows in reason from the essential fact of human
vulnerability (Pufendorf 1673, 47–48 (book 1, Chap. 3, § 7) and the divine command
to love one’s neighbour (Pufendorf 1673, 17–18 (Introduction)). These fundamental
observations lead to the duty not to cause injury to another (Pufendorf 1673, 72 (book
1, Chap. 6, § 2)). Indeed, so far as our own interests are not unduly sacrificed, we are
obliged to advance the interests of others (Pufendorf 1673, 82 (book 1, Chap. 8, §
1)), to do good deeds for them and to accept with true gratitude those done by them
for us (Pufendorf 1673, 83–85 (book 1, Chap. 8, §§ 5–8)).
For Pufendorf, natural law did not require an institution of private property; it is a
human conception devised to maintain peaceful coexistence in society and to deal in
an orderly way with the shortage of resources that developed with increasing human
population (Pufendorf 1673, 105 (book 1, Chap. 12, § 2); Denzer 1972, 153).28 For
this reason things over which private property cannot be exercised, such as the light
and warmth of the sun, the air, flowing water, the high seas and so forth, remain
in nature but not as the common property of humans. Pufendorf’s explained his
conception of private ownership thus:
26 John Wise, the author of works that underlay the Virginian Bill of Rights of 12 June 1776 and
thence the US Bill of Rights, described Pufendorf as ‘chief guide and spokesman’: Randelzhofer
1983, 7–8.
27 In the sense that the ‘practice of nations’ in making positive laws may reveal an underlying
principle.
28 On this point Pufendorf was in line with Grotius and his contemporaries, in contrast to the view
of Locke (1632–1704) that private property is a natural law right: Medick 1973, 77.
Ownership is the right by virtue of which someone is entitled to a thing in its totality in
such a manner that it cannot simultaneously belong to another. It follows that we may deal
with our property at our discretion and exclude all from every use or misuse of it, unless
someone has acquired a particular right from us by agreement. Nevertheless, in a governed
community it is generally not the case that property is unlimited. More often it is, either
through governmental authority or through particular arrangements, provided to humans
with particular limitations (Pufendorf 1673, 106 (book 1, Chap. 12, § 3)).
This formulation is remarkably consonant with the text that emerged in § 903 of
the German Civil Code with respect to the powers of the owner of property.
The recurrent idea that natural law rights and responsibilities are determined by the
‘nature of the thing’ also appears in Pufendorf’s work as well. Natural law principles
are to be recognised by all in nature and thus the “individual duties that natural
law imposes on humans are best distinguished by means of the types of objects to
which they refer” (Pufendorf 1673, 49–50 (book 1, Chap. 3, §§ 12–13)). Humans
internalise and learn to recognise natural law from birth, in the way they learn their
mother languages. Practical examples are found in Pufendorf’s work. For example,
whether growth in a thing belongs to the owner of the thing or to the person through
whose work and care it has occurred (Pufendorf 1673, 108 (book 1, Chap. 12, § 7)),
and the different levels of care required in particular situations (Pufendorf 1673, 59
(book 1, Chap. 6, § 9)), are to be determined in view of the ‘nature of the thing’ in
the light of reason.
Pufendorf identified three principal duties that follow from human introduction
of the institution of private property: (i) to allow others to enjoy their property in
peace, (ii) to return things that belong to others, and (iii) to make restitution of profits
made from property to which one is not entitled. He derived a further seven yet more
specific subsidiary principles from the fact of property and its acquisition (Pufendorf
1673, 114–115 (book 1, Chap. 13, §§ 1–10)). It is an aspect of the duty to preserve
oneself that one may use the property of others in emergency (Pufendorf 1673, 67–71
(book 1, Chap. 5, §§ 18–24)). These duties found by Pufendorf to stem from property
must be understood in light of the more general responsibilities that follow from the
human condition and the use of wealth and resources. For Pufendorf it was essential
that everyone must learn something, according to ability and position, so that no one
will senselessly burden the Earth (Pufendorf 1673, 59 (book 1, Chap. 5, § 2)). Those
who are satisfied to live just on what they have inherited, or what they have found, or
to live on the industriousness of others and make no provision for their descendants,
were in Pufendorf’s eyes “dust and useless burdens on the Earth” (Pufendorf 1673,
82 (book 1, Chap. 8, § 2)). It is better to give what we no longer want to someone
who can make use of it than to destroy it (Pufendorf 1673, 83 (book 1, Chap. 8, §
4)).
The discretion vested in us with respect to our property is to be exercised respon-
sibly, like all other human discretions. Humans have free choice of action so far as
there is no law requiring them in the situation to act otherwise (Pufendorf 1673, 42
(book 1, Chap. 2, § 11)), but this does not mean that they may conduct themselves
with unlimited discretion because they are to be good and useful members of human
society and because of their duty to God (Pufendorf 1673, 50 (book 1, Chap. 3, §
100 M. Raff
13)). Since unbridled and extreme passions lead to the confusion of society and great
damage to every individual, everyone must strive so far as possible to keep reins
on their emotions (Pufendorf 1673, 60 (book 1, Chap. 5, § 3)). Humans must take
responsibility for the consequences of the actions and inactions of which they are the
authors (Pufendorf 1673, 12–13 (Introduction)). The most effective law is one that
brings an advantage, an incentive, to the person whose freedom of action it seeks to
limit (Pufendorf 1673, 41 (book 1, Chap. 2, § 8)).
Pufendorf’s views of human powers over nature are to be understood in this
context. The human body has been created in a way that requires external objects for
nutrition and for protection:
For these reasons, with certainty, it follows the will of He who alone guides the universe that
humans cultivate the other creatures for their own use, even when thereby they destroy many.
This applies with respect not only to the plant kingdom and other insensitive objects that
are destroyed, but also to innocent animals. Although they die in pain, it is not a sin when
humans kill and consume them for their nutrition (Pufendorf 1673, 105 (book 1, Chap. 12,
§ 1)).
Pufendorf was not referring to the destruction of entire species when he referred to
the destruction of many creatures. He was referring to domesticated life forms raised
by humans. Even in this respect the tone of Pufendorf’s writing suggests a matter-
of-fact acceptance of something he otherwise found unpalatable. In the natural law,
in any case, God is the highest owner of all things and humans have only a common
‘use right’ over the things found in Creation. The institution of private property is
a human arrangement, at best merely condoned at the higher level (Diesselhorst
1976, 28). Pufendorf referred in the harshest terms to those who burden the Earth
by taking from it and prejudicing the rights of future generations. Clearly his respect
for nature was very high; in its own right, as the emanation of the divine and as the
connecting point between law and the divine. Nature is the seat of natural law. In
addition, acknowledgement of the interconnection and interdependence of humans,
nature and the universe is implicit in his description of Creation as a ‘mechanism’—
nature and the miraculous harmony of the world are proof to Pufendorf of the very
existence of God (Pufendorf 1673, 51–54 (book 1, Chap. 4, §§ 2–5)).
The natural law theory of Christian von Wolff (1679–1754) strongly resembles
that of Pufendorf, particularly in its system of civil duties. In continuation of the trend
initiated by Grotius, Wolff took natural law a step further away from its historical
connection to theology (Winiger 1992, 306) by devising a complex logical system
for the derivation of natural law norms from the nature of the world, its natural order
and the things in it. When God created the world in one divine act He impressed it
with all of its natural laws, physical and moral, and consequently human affairs are
to be ordered in harmony with nature. The movements of the human body and soul
are governed by laws just as the paths of the planets are (Winiger 1992, 95–96, 103).
The method for deriving all natural laws from the nature of the world, including
those juristic, is to follow similar rational syllogisms involving investigation of the
elements of things and mathematical calculation. One of Wolff’s unique innovations
was to bring an investigation of the nature and essence of the human situation, the
elements of human existence and consciousness into the scientific deduction of the
nature and the essence of the things involved in a particular question. In this way
Wolff’s natural law jurisprudence emerged as a metaphysic. In consequence, one
might easily be drawn to focus narrowly on Wolff’s metaphysical analysis of the
human condition, the soul and powers of self-determination, but ultimately one must
return to his basic proposition that when humans organise their affairs in congruence
with natural law they stand in harmony with themselves, nature and the totality of
Creation (Winiger 1992, 111, 179, 182). Human powers of self-determination are
not to be exercised arbitrarily but toward the perfection of the entire world (Winiger
1992, 192–193). Through his sophisticated conceptual analysis Wolff justified a
jurisprudence of duties and rights that was consistent with the modern natural law
philosophy of the Age of Reason, the binding force of which followed ultimately from
nature herself (Winiger 1992, 179). Our duties to others extend to future generations
(Winiger 1992, 201–202). One should not waste what is exhaustible (Luig 1998,
259, 261, 275).
Wolff conceived rights as the moral capacity to act. Nature does not provide for
property (Luig 1998, 263), so those with a right of property transact with the moral
capacity to execute actions made possible by their property. Rights of property serve
the duty to oneself at the same time as one’s duty to the community (Luig 1998,
274). Human powers are not to be exercised arbitrarily (Winiger 1992, 192–193;
Luig 1998, 278), and a moral capacity is one that leads to action that is correct with
respect to the nature and essence of humans and of things (Winiger 1992, 206–207).
Freedom exists where there is no rule to restrict it. One is free when one exercises
one’s powers of self-determination in accordance with the rules of reason within
nature’s order. In other words, every freedom is limited by the constraints of nature.
Because nature drives us to pursue our destiny and the perfection of the world, for
Wolff there was no contradiction between duty and freedom within the constraints
of nature (Winiger 1992, 286–288).
The abstract natural law of the early 18th century, built around duties and respon-
sibilities, did not find exact reflection in the more pragmatic mirrors offered by the
European natural law codifications of the 18th and 19th centuries (Winiger 1992,
293). Although the duties derived by Pufendorf and Wolff were remarkably con-
sistent with Roman law, that body of law was constructed around rights and rights
became the main structural feature of the new codes. With regard to the General
Prussian Code of 1794, however, the substantive influence of modern natural law
and the principle of civil responsibility following from it remained great.
The drafting of the General Prussian Code of 1794 was first initiated in 1714
by Friedrich Wilhelm I (1688–1740). The project languished until it was taken up
with enthusiasm by his successor Friedrich the Great (1712–1786), who in the style
of the Enlightenment was the embodiment of the philosopher-king.29 His objec-
tives were to rationalise a myriad of laws applying in different provinces, in order
to achieve legal certainty and to enlighten his subjects. Progress was made when
29 Friedrich
the Great had musical skills as well. A fugue conceived by the king was completed by
JS Bach as ‘Musikalisches Opfer’ (BWV 1079).
102 M. Raff
Friedrich commissioned Carmer,30 assisted by Svarez and Klein, to undertake the

task. Friedrich was impressed by the French natural law political philosopher Mon-
tesquieu (Montesquieu 1748) but his assistants had been educated by protégés of
Christian Wolff (Hattenhauer and Bernert 1994, 7–8; Winiger 1992, 304). They
were also well acquainted with the work of other philosophers of the era, includ-
ing Hobbes, Locke and Leibniz,31 just as the works of Grotius and Pufendorf were
still influential in France in the 1780s (Thomann 1988, 37–38). Friedrich the Great
did not live to see the Code completed and the accession of Friedrich Wilhelm II
(1744–1797) allowed reactionary forces the opportunity to force a reconsideration
of the project. Ultimately however this brought only minor changes to the draft Code
(Hattenhauer and Bernert 1994, 12–19).
Friedrich the Great had directed that the confused sources of law be brought
into concordance with so much of Roman law that would remain relevant under a
natural law code, so that it would govern the state like clockwork (Hattenhauer and
Bernert 1994, 2). The General Prussian Code did not emerge in the precise format
of Wolff’s philosophy of duties and responsibilities, but rather in a general format
resembling the rights approach of Roman law. Many reasons for this have been
advanced, including political acceptability (Hattenhauer and Bernert 1994, 21–22)
and the impracticality of codifying the unlimited range of duties that theoretically
could be derived according to Wolff’s methodology (Winiger 1992, 292, 300–306).
However, one finds statements of civil duty at important points in the General Prussian
Code. Prominently placed in the first paragraph of the General Principles of the Law
we find that “… every member of the state is endutied to support the good and the
security of the community according to his rank and capacity” (General Prussian
Code, Introduction, § 73).
The provisions of the General Prussian Code concerning property set out a balance
between rights held and wider responsibilities owed. Additionally, private property
rights were subject to limitations stemming from the nature of the thing in question.
At the most general level, the rights of full ownership were the right to possess, use
and surrender the thing (General Prussian Code, Title 8, § 9). The right to use the
thing extended to all advantages that the thing affords, but so far as the law did not
otherwise provide the owner did not have to account to others for use made of it
(General Prussian Code, Title 8, §§ 12–13). On the other hand, no one was to misuse
their property to the offence or injury of others; misuse being judged by the nature
of it (General Prussian Code, Title 8, §§ 27–28). The state could nevertheless limit
the citizen’s private property rights in order to avert considerable damage to others
or to the state itself. If the interest in prevention of damage considerably outweighed
disadvantage to the owner, the owner was to be indemnified for losses (General
Prussian Code, Title 8, §§ 29–31).
One might observe that there could be no disadvantage to the owner if the lim-
itation on use of the property prescribed by the state were implicit in the nature of
the property itself. This interpretation is confirmed by the paragraphs of the Code
30 Johann Heinrich Casimir Graf von Carmer, 1721–1801.

31 Klein published discursive works dealing with many related issues (see Klein 1790).
that follow the requirement for indemnity. The state could prohibit the destruction
of a thing, the conservation of which had a considerable influence on the common
good (General Prussian Code, Title 8, §§ 33–34). Statues and heritage could not be
destroyed (General Prussian Code, Title 8, § 35). Buildings that faced streets or pub-
lic places had to be maintained, and if not the authorities could sell them to ensure
it (General Prussian Code, Title 8, §§ 36–57). These principles were also applicable
to any urban building destroyed by fire or other misfortune (General Prussian Code,
Title 8, § 58) and also to other important assets in remoter regions (General Prussian
Code, Title 8, § 60 et seq). Bees by their very nature do not respond to human prin-
ciples of personal property but swarm and join with other swarms in new habitats
from which few would dare to remove them in the name of private property alone; so
special principles were included with respect to property in bees (General Prussian
Code, Title 9, §§ 118–126).32 Similarly, the principles applicable to the acquisition of
land differed from those applicable to movable property. In order to gain a proprietary
right over land a procedure had to be completed before a judge and registered in the
Mortgage Book. The registered proprietor was to be regarded as the true proprietor
in transactions with third parties (General Prussian Code, Title 10, §§ 6–7). As seen
in all of the modern natural law jurisprudence surveyed, the ‘nature of the thing’ was
thus determinative of many legal responsibilities and rights attached to property by
the General Prussian Code. The influence of the General Prussian Code is difficult
to assess. After 1814 the Code Napoléon and the French Declaration of Civil Rights
emerged as the most influential natural law and liberal legislative models, particularly
at the provincial level in Germany when it was decided to pursue rationalisation of
legal sources through codification (Dölemeyer 1978, 179). Nevertheless, provisions
of the General Prussian Code held great importance in the deliberations of drafting
committees of the German Civil Code.
It is widely accepted that the work of scholars in the Roman law group of the
Historical School, foremost Savigny, and the Pandectan scholars that followed, fore-
most Windscheid (1817–1892), greatly influenced the first published draft of the
German Civil Code. However, the attitudes of Savigny and Windscheid to natural
law were complex and sophisticated. The emerging school rejected the rationalistic
natural law of the Enlightenment (Coing 1989, vol II, 44 (emphasis added)); the
“hollow abstractions of a putative natural law” removed from the needs of a prac-
tical world (von Savigny 1840–1849, vol VII, Prologue, vi–viii (emphasis added)).
However, natural law had metamorphosed in a pragmatic direction initially through
Montesquieu’s theory of the ‘spirit of law’ influenced by the climate, properties of the
soil, population, economic life, religion, morals, usages and the spirit of the people
(Thieme 1986d, 642–646), introducing a ‘sociological’ dimension to the identifi-
cation of principles of law immanent in the nature of the universe and the lives of
humans within it (Weber 1922, 288), and the spirit of the laws. As Savigny’s career
progressed, paradoxically he looked more and more to classical Roman law for the
spirit of German law, sustained remarkably from generation to generation by the legal
32 General Prussian Code, § 124 provides for change of rights over escaped swarms.
104 M. Raff
profession as delegates of the people, leading ultimately to the split in the Historical
School between Romanists and Germanists (Thieme 1986b).
In the scholastic tradition Roman law had long been regarded as the written
emanation, the ratio scripta, of the natural law. Lipp concluded that a substantive
distinction between the position of the Historical School and the precepts of natural
law is questionable (Lipp 1980, 46). Savigny connected Roman law to a divine
origin of human intellectual development. Savigny frequently asked whether legal
phenomena accorded with nature (von Savigny 1840–1849, vol I, Prologue, xx, xxv,
xlii, book I, 29, 31) and sought justification in the essence of the thing or issue
involved. Indeed, at the heart of his system Savigny found symmetry between the
fundamental basis of the institutions of the civil law and that of legal relationships—
they all stem from the ‘essence of the matter’ (von Savigny 1840–1849, book I, 9–11).
I have examined this connection elsewhere and will merely repeat that one cannot
conclude Savigny belonged squarely within the natural law tradition, however the
work of authors who went before him, including Wolff, clearly formed important
departure points for him and their influence may be found in his work (Coing 1979,
20–21; Raff 2003, 134–135).
Windscheid’s work also resonated important points made by earlier natural law
thinkers. Material things serve the satisfaction of human needs and the achievement
of human ambitions. The appropriate legal form for this is that form which recognises
the will of the relevant individual or individuals to the exclusion of other individuals.
If legitimate individual will seizes upon the thing in the totality of its connections,
then the relationship to it is designated the right of ownership. However, the natural
qualities of some things determine that they are not appropriate objects of exclusive
individual human will, such as air, the sea and the coast. The distinction between
waters appropriate for private use and those that remain in common use is again
determined by nature. Some things in private ownership might nevertheless be dedi-
cated to common use, such as streets, paths and bridges (Windscheid 1891, vol I, 1–6,
§§ 1–2). The important test is the totality of the connections of the object of private
property. The right of ownership means for the individual, and according to law, that
the relevant thing is his or her own. This means that the owner’s will is decisive with
respect to the totality of the thing’s connections. Thus, the owner may deal with the
thing as he or she will and others may deal with the thing only according to the will
of the owner. By virtue of the concept of ownership particular powers vest in the
owner, such as the power to use the thing and to profit from it. However, ownership
is not just the sum of these powers. It is the manifestation of these powers because
otherwise, if one of them were absent, the right of ownership might fail and this is
not the case.
In concept, ownership is thus unlimited but for Windscheid too, ownership has
limitations. If a relevant connection of the thing is absent, then the will of the owner
is commensurately modified; the connection is not present in the totality upon which
the individual’s will may legitimately seize. The right remains that of ownership
because the individual’s will remains decisive for the thing in the totality of those
connections that do exist and it justifies “conceivable” powers over the thing:
[The individual] does not cease to be proprietor because the fact remains that he retains a
right which, as such, makes his will decisive for the thing in the totality of its connections
and which is ample justification for any conceivable power over the thing (Windscheid 1891,
vol I, 492, § 167 (emphasis added)).
The acts referred to by Windscheid as capable of removing one of the connections

of the thing are all legal acts, but the same logic is applicable to facts about the thing
that restrict its viable uses as well as to laws that might express or ‘concrete’ [die
Konkretisierung] such restrictions. The owner retains powers that are “conceivable”,
no doubt by a rational or reasonable person in the concrete situation. This is consis-
tent with Windscheid’s frequent return to the nature of the particular thing or land
parcel as decisive of relevant rights and powers (Windscheid 1891, vol I, 490–493,
§ 167). Windscheid grouped the legal limitations of ownership into two—those rest-
ing on a general rule of law and those resting on a right acquired by a third party
(Windscheid 1891, vol I, 493, § 167). His exploration of those limitations resting on
a law encompassed mainly restrictions arising in view of neighbouring land uses.
Again, the determinant of the extent of rights and responsibilities was the nature of
the relevant land (Windscheid 1891, vol I, 497, § 167, 501, § 169):
Inconsiderate implementation of the consequences of the property concept is impossible
without creating substantial injustice. No positive law can avoid breaking off this or that
aspect of these consequences, so that the proprietor may not in this or that connection deal
with the thing or prevent the dealings of another in this or that connection. The legal relations
existing in view of such limitation of ownership differ from one individual case to the next
(Windscheid 1891, vol I, 495, § 169).
Windscheid thus also saw the powers of the owner as relative to the nature of the
thing in question, considered in its context. The social context of the thing thus led
to rights and responsibilities in respect of it.
We can see consequently that the German modern natural law tradition is the
source of the jurisprudence of responsibility with respect to property that manifests
in Article 14(2) of the German Constitution (Basic Law of the Federal Republic of
Germany, Article 14(2) set out in text above). As a natural law principle responsible
proprietorship manifests also in the civil law.33 Today the responsibilities that pervade
property include environmental as well as social responsibilities.34 Legislation that
defines and implements the responsibilities that flow from the nature of the thing, such
as its ecological characteristics, considered rationally in its context, does not amount
to a regulatory taking or expropriation. It merely concretes the responsibilities that
already exist by virtue of its nature. In the time of the Glossators the ‘nature of
the thing’ was already a focus of deliberation and a source of natural law principle.
This encompassed physical objects, interconnections surrounding them and concrete
issues that arose. The important transition in this respect is that in the Age of Reason
33 I have examined influences of natural law on development of the property law provisions of the
German Civil Code in: Raff 2003, 139–158; and the present day operation of the system: Raff 2003,
Chap. 5.
34 I have examined treatment by the German courts of the environmental responsibilities that inhere
in property in Raff 2003, Chap. 4; Raff 2005, vol 3, 65–88.

106 M. Raff
the ‘nature of the thing’ was to be ascertained through science and tested against
natural elements and the laws of nature (Radbruch 1960). The basic position that
rights and responsibilities with respect to property are to be understood in context
of the situation in which the object is located was in the 19th century agreed also
by the sociological school, represented by Ihering, and by the Historical School,
represented foremost by the Germanist Gierke but also by Savigny and Windscheid.
4.5 Conclusion
The philosophical work of Léon Duguit and German jurisprudence share an approach
to property rights that embraces responsibilities as well as entitlements. The respon-
sibilities associated with particular property are ascertained in light of the broader
social and environmental context of the object of property. For Duguit this followed
from a social function of property which he developed in the modern sociological
style of the late 19th century. With respect to German jurisprudence the principle
of responsibility was recognised by three schools of thought; (i) by Ihering, also
following a 19th century modern sociological style, (ii) by Gierke, representing
the Germanist thinkers of the Historical School, but not excluding Savigny and the
Romanists or the Pandectan thinkers such as Windscheid, and (iii) in the long and
deep tradition in Germany of modern natural law. Duguit disagreed with all of these
German schools of thought—“the unsound German theories of law.” Paradoxically
he disagreed with modern natural law on the basis that its support of individual
rights was too extreme, perhaps thinking of French, English and American writers
on the topic. Instead he preferred a concept of social solidarity which was neverthe-
less reminiscent of the natural law principle of sociability espoused by Grotius and
Pufendorf.
On the other side, Duguit has been noted in German legal literature most impor-
tantly with respect to the influence in the early 20th century of his theory of the
social function of property: (i) in revolutionary Russia, and (ii) in Germany during
World War I and the early years of the Weimar republic. With respect to revolutionary
Russia the scholarly work of Norbert Reich places before us ample evidence. With
respect to World War I and the Weimar republic the influence of Duguit is not so
readily apparent because the writers in question did not cite or refer to him. Rather,
they tended to draw on the Germanist tradition of the Historical School and other
sources. However, the evolution of thinking about the place of private property in
political economy at that time did display the contemporary trends that Duguit had
described, and the trajectory which he had foreseen, attesting to his insights as a
modern legal sociological thinker.
The German legal system still recognises property as a compact of rights respon-
sibilities as a matter of principle, most clearly but not exclusively in Article 14(2) of
the German Constitution. Although reference is made to all three schools of thought
referred to above in support of this conception, the courts have recognised the modern
natural law tradition as the most important of those sources and continue to innovate
with it, especially in context of the environmental responsibilities of those who hold
interests in property. It is easy to imagine that if Duguit were still writing today he
too would regard it as a social function of those who hold interests in property, and
especially land, to protect the ecological integrity of the ecosystems in respect of
which their property extends their human powers, as required by the internationally
accepted concept of sustainable development.
Acknowledgements I thank Professor Paul Babie, Adelaide Law School, University of Adelaide,
for his kind invitation to contribute to this volume. I am also grateful to colleagues at the Max Planck
Institute for Comparative and International Private Law in Hamburg, and at the Faculty of Law,
University of Würzburg for their kind hospitality, and to the National Library of Australia, without
which this research would not have been possible. All translations are by me unless otherwise
indicated. I dedicate this work in gratitude to the late Professor Christie Weeramantry, former
Vice-President of the International Court of Justice.
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Chapter 5
The “Social Function of Property”
in German Law
Martin Löhnig
Abstract In the late 19th century the concept, saying that there is no absolute
property without regard for the community, had been established in Germany. This
idea goes back to the thinking of Ihering and probably also inspired Duguit. The
First World War strengthened this development on sub-constitutional and constitu-
tional level: “Eigentum verpflichtet, sein Gebrauch soll zugleich Dienst sein für das
Gemeine Beste” (with ownership comes responsibility, its use shall also serve the
common good). This is what can be found in the Weimarer Rechtsverfassung of 1919
as well as in the Grundgesetz of 1949 which is still valid today. Of course, there is
dispute up to the present day about the meaning of this wording.
Keywords Pandectism · Zweck im Recht · Grundgesetz (basic law) · Social

responsibility · Gemeinwohlklausel · Tenancy · Ihering
5.1 Concept of Ownership in the 19th Century
5.1.1 Constitutional-Historical Background
The issues of social obligation of property ownership in Germany and the constitu-
tional situation in Germany during the 19th century are closely connected. After the
dissolution of the Old Empire in 1806 sovereign states establish, joining together as
a loose alliance, the German Confederation, in 1815. The period of constitutional
monarchies and their power restricting constitutions begins in the southern German
states like Bavaria, Württemberg or Baden and will last until 1918. These consti-
tutions (unlike the 1871 Constitution of the German Empire) include fundamental
rights understood as rights of defence against the sovereign power. This includes
the guarantee of private property, described as “Safety of Property” (“Sicherheit des
Eigenthums”, First Title § 7) in the Bavarian Constitution of 1808 as the earliest
M. Löhnig (B)
Regensburg, Germany
e-mail: Martin.Loehnig@jura.uni-regensburg.de

112 M. Löhnig
example of German constitutional history. This resulted in a sphere of social free-

dom shielded from state power. Private law assumes the function to govern the legal
relations in this sphere (only), such as the extensive proprietary rights of use and
exclusion against other citizens or the mechanism for transferring property from one
citizen to the other.
In the first constitutions of the German individual states an access of state author-
ities to private property is not intended. The 1848/49 drafted but never effective con-
stitution of the bourgeois revolutionaries (the so called ‘Paulskirchenverfassung’ that
is reference text to the “good” German constitutional tradition of 1849/1919/1949)
states in § 164, apart from a property guarantee (“Das Eigenthum ist unverlet-
zlich.”/“The ownership is inviolable.”), a possibility of expropriation for reasons of
common welfare. “An expropriation shall only be performed in regard of considera-
tions of the common good, on the basis of a law and after appropriate compensation.”
Thus, it states a certain, albeit very weak social restriction of private property. How-
ever, the legal requirements (similarly regulated today in the 1949 Constitution of
the Federal Republic of Germany) are very high. A formal law, an Act of Parliament,
is required and an appropriate compensation must be provided.
5.1.2 The Pandectist Conception of Property
After the failed bourgeois revolution of 1848/49 the bourgeoisie withdraws to pur-
suit their economic interests of purchase. Sacrifice of political participation for the
protection of those rights, the deal between monarchs and citizens states. In the
second half of the 19th century this is the background leading to a certain idea of
property in German private law. It has its origin in the theories of Friedrich Carl
von Savigny (1779–1861) (von Savigny 1837, vol 1, 367, § 56), the founder of the
“German Historical School” that shaped the German and European legal doctrine
in the 19th century. He describes property as the unrestricted and exclusive right
of a person regarding an object and therefore, the complete legal subjugation of an
object. Contrary to the widespread concept that this right could be defined as a sum
of individual competences (the right to possess or use the object, to dispose over the
material substance, to exclude others, etc.) another opinion gains ground after 1850.
As an example, for the legal scholar Ernst Adolf Pagenstecher (1826–1901) from
Heidelberg (Pagenstecher 1857, vol 1, 3, § 1) the competences arising from prop-
erty cannot be listed exhaustively and even an exhaustive list could not describe the
essence of property. Bernhard Windscheid (1817–1892) (Windscheid 1887, vol 1,
559, § 167) summarizes the predominant view at the end of 19th century as fol-
lows: The concept of property cannot be explained by the individual competences
it includes. Property does not arise from the summary of a number of competences
to an entity but on the opposite the separate competences originate from property
itself. Almost identical wording can be found in the justification of the Civil Law
Code’s First Draft (Mugdan 1896, vol 3, 145). The Civil Law Code came into effect
5 The “Social Function of Property” in German Law 113
in 1900 and is still valid to this day (BGB; this Law is frequently called a textbook
from Windscheid in the form of paragraphs).
5.2 New Trends: “Der Zweck im Recht” (Ihering)
5.2.1 Interests of Society Versus Individual Interests
The social sphere as outlined above is based on the principle of formal legal equal-
ity of all private legal entities. A distinction based on status no longer takes place.
However, social differences intensify during the 19th century as a result of the indus-
trial revolution, demographic explosion and the change of work relationships and
working conditions. But, an understanding for political conditions—mandatory for
a social effect of formal equality—does not evolve. The bourgeoisie’s withdrawal to
the social sphere whilst surrendering their aspirations of political participation after
the failed revolution occurs in a phase of rapid increase of social inequality and the
need for distributional political decisions becomes virulent. Formal equality in the
form of equal opportunity did not lead to substantive equality. The establishment of
social justice, as was expected of the state’s absence, became the state’s mission.
In the legal sciences’ debate it was the legal scholar Rudolf von Ihering
(1818–1892) from Göttingen who assigned this task to private law, asking his famous
question concerning the “Zweck im Recht” (“Purpose in Law”). For him private law
is a product of the battle of interests and has the task to achieve a balance between
conflicting interests. In Ihering’s opinion private law cannot solve this equalizing
function in the second half of the 19th century. He castigates the merciless exploita-
tion of the misery of others by means of law as the fruit of a glorified egoism. “Don’t
we have to admit that we are in need of a principle to impose an external limit to
egoism, as it is insatiable by nature, and that it does not bear in itself?” (Ihering 1877,
vol 1, 141) Ihering asks.
So, social interest as potentially opposing interest to individual interest enters
the stage of private law. Private law does no longer serve solely the realization
of private interests between individuals. Therefore, Ihering resolutely counters the
predominant doctrine—to define rights regarding the individual will—and demands
that law has to serve the requirements of social intercourse and not an individual will.
The individual’s wishes are only eligible to protection insofar as they are subject to
these objective rules. Ihering breaks with the belief that a statutory intervention in
individual rights is an outmost emergency measure incompatible with the idea of
freedom rights. Freedom rights could only gain shape regarding the social situation.
For Ihering their limitation is part of their character as individual rights.
114 M. Löhnig
5.2.2 Changes in the Concept of Property
This means that according to Ihering all rights of the individual, including property,
are influenced by a concern for the society and legally bound. He had already attracted
attention with a sentence from the first volume of the 2nd edition of his work “Der
Geist des römischen Rechts” (von Ihering 1866, vol 1, 7)1 which had been published
in 1866: “There is no absolute property in the sense of a property that is free from a
concern for society and history has guaranteed to engrave this truth into the people’s
memory.” Eleven years later (von Ihering 1877, vol 1, 523),2 in the first volume of
“Der Zweck im Recht”, Ihering points out: “It is not true that property by its own
definition carries the absolute power of disposition in it. The society cannot tolerate
and has never tolerated a property in this form —the idea of property cannot bring
anything with it that conflicts with the idea of society. This concept constitutes the
last remains of the unhealthy concept from natural law which isolated the individual
to himself.”
With this statement he confronts the individualistic theory of property in the sense
of an absolute power over the object with a societal theory of property that roots in the
idea of the societal character of private laws: according to Ihering, all private laws,
including the ones that in the first instance exist for the purpose of the individual
are influenced and bound by a concern for the society (von Ihering 1877, vol 1, 526,
532). For him these restrictions are an immanent part of property; therefore, property
is no longer an absolute right for power (Cf. Coing and Wilhelm 1979, 19).
5.2.3 Ihering and Duguit
Ihering is a central character for the examination of a German perspective on Duguit’s

theory of the social function of property. Firstly, because Ihering already opens the
discourse on the social dimension of private law and property before Duguit develops
his thoughts. Secondly, because Ihering’s works quickly spread in France, too, and
Duguit uses them as a source of inspiration when he demands for a social private law.
The Berlin Legal Scholar and Judge at the Bundesverfassungsgericht Dieter Grimm
(*1937) who wrote a doctoral thesis about Duguit in the 1960s and found the works
of Duguit’s German sources in the reference library while writing on his book in
Duguit’s study (Grimm 2017, 53).
1 “Es gibt kein absolutes, d.h. der Rücksicht auf die Gemeinschaft entbundenes Eigentum, und die
Geschichte hat dafür gesorgt, den Völkern diese Wahrheit einzuschärfen” (translation provided by
the author).
2 “Es ist also nicht wahr, daß das Eigentum seiner Idee nach die absolute Verfügungsgewalt in
sich schlösse. Ein Eigentum in solcher Gestalt kann die Gemeinschaft nicht dulden und hat sie nie
geduldet – die Idee des Eigentums kann nichts mit sich bringen, was mit der Idee der Gesellschaft
in Widerspruch steht. Diese Vorstellung ist noch ein letzter Rest jener ungesunden naturrechtlichen
Vorstellung, welche das Individuum auf sich selber isolierte” (translation provided by the author).
Duguit, as well as Ihering and other contemporaries, takes his starting point in the
crisis of liberalism that also became a crisis of the liberal orientated legal science.
But they both draw different conclusions. Duguit, in contrast to Ihering, demands a
complete system change in private law. He not only wants to draw a line for the will of
the individual but also wants to ban him from the center of private law and replace him
by the category of purpose. But he is talking about a different purpose than Ihering.
He simply wants to wipe out the system of private individualism in general (Grimm
1973). The human being can always only live in society with his equals. This is why
it is incorrect to talk about rights of the individual by himself. Therefore, Duguit has
to attack the category of subjective rights which builds the basis of the civil legal
system. For Duguit property does not name a right of the individual but primarily
his duty to fulfill a social function with the help of an object that is allocated to him.
This leads to the conclusion that when the positive law protects property, it does not
protect a subjective right of the owner, but his freedom to fulfill the social function
which is his responsibility because he possesses goods. As far as it is compatible
with this function the owner can also satisfy individual needs.
5.3 Changes in the Concept of Property in Germany
5.3.1 The Great War as Catalyst
A materially just system cannot be developed under the maintenance of a strict

separation between state and society. This would be incompatible with the liberal
understanding of civil rights and liberties. This is why at the transition from the
19th to the 20th century the German civil state under the rule of law is not ready
for changes in the system, but sees its task at best in the fighting against excesses.
Therefore, the civil freedoms are not questioned in general, but were restricted a little
bit in some points. Ihering had delivered the theoretical basis for that.
This is manifested in the civil law legislation since the end of the 19th century. It
does not show in the new Bürgerlichen Gesetzbuch (Cf. Repgen 2001) that came into
force when the century turned, but it does indeed show in supplementary laws. An
example is the Abzahlungsgesetz of the year 1894 that intervened in a regulatory way
into civil law contractual relations (Löhnig 2017, 91) and is now integrated in the
legislation on consumer credits. Gottlieb Planck, General Adviser of the legislative
committee that had the task to develop the Bürgerliches Gesetzbuch, in 1897 already
expressed the assessment that the just completed code does not consider the “social
needs of the present time” (Planck 1897, vol 1, XLII).3 But for him this is not a
deficiency of the code. For him—and with this he reproduced the general view of the
3 “sozialen Bedürfnisse der Gegenwart” (translation provided by the author).

116 M. Löhnig
time—“social innovations” had to be left to the “special legislation” (Planck 1889,

406).4
An access to property under the use of its social function especially takes place in
the field of legislation on tenant protection. The law of tenancy in the Bürgerliches
Gesetzbuch is—as well as the entire code—characterized by civil-liberal principles
of equal freedom of all citizens. The provisions on the right of termination in the
field of tenancy law continue the tradition of the classical liberal idea of the free-
dom of property. The criticism by the ultra-conservative Prussian Legal Scholar Otto
von Gierke (1841–1921) concerning these (and further) proposals for regulations
is well-known: It should be a task of the state to protect the weak one against the
strong one and the benefit of the community against the selfishness of the individual.
“Curtly worded: in […] our private law a drop of socialistic oil has to seep through!”
(von Gierke 1899, 9).5 Especially concerning tenancy law Gierke writes: “Left aside
details, the question —that turned into a burning issue in modern cities —if there
should be legal restrictions of the freedom of contract in terms of rent for the protec-
tion against tyranny and usury, has not even been taken into account.” (von Gierke
1889, 241).6
The legislation on the protection of tenants which is partly in force until today has
its origin in the orders concerning the protection of tenants that had been issued in
second half of the “Great War” when the housing construction activity had come to
a standstill. In retrospect they mark the beginning of a development that is correctly
called “departure from the BGB” (Oestmann 2013, 6)7 because the residential ten-
ancy law has since then been sovereignly regulated civil law. The renting of living
space turns from the simple exercise of ownership by the owner as “sovereign” in
the form of a transfer of use against payment to a field that is taken away from the
classical contract law and largely regulated by the state. So, private property of real
estate that serves as housing space is widely managed by the state in the Weimar
Republic.
5.3.2 Shifting the Constitutional Frame
Given that property protected under constitutional law was highly determined with
regards to its content and limits since 1919 due to its social importance, shifting the
constitutional frame was permitted. The Weimarer Reichsverfassung (WRV), which
came into force in 1919, serves as basis. It differs from the statute law in the BGB
4 “socialeNeuerungen”, “Specialgesetzgebung” (translation provided by the author).

5 “Schroffausgedrückt: in […] unser Privatrecht muß ein Tropfen sozialistischen Öles durchsick-
ern!” (translation provided by the author).
6 “Von Einzelheiten abgesehen, ist die in den heutigen Großstädten brennend gewordene Frage, ob es
nicht gesetzlicher Einschränkungen der Vertragsfreiheit bei der Wohnungsmiete zum Schutz gegen
Miettyrannei und Mietwucher bedarf, nicht einmal in Erwägung gezogen” (translation provided by
the author).
7 “Abkehr vom BGB” (translation provided by the author).
concerning the definition of absolute property: The amount of property limits set
by public law increases massively in comparison to 1914, especially regarding real
estate issues. Several new statutes allow the socio-political claim of property; further
statutes enacted at wartime also are applied post-war.
Art. 153 of the Constitution regulates the guarantee of property by Constitution.
However: Its content and limits result from the statutes, Art. 153 Subsection 1 sen-
tence 2 of the WRV. Different to the Paulskirchenverfassung (also different to the
Constitution from 1949) the Weimarer Reichsverfassung permits resumption with-
out compensation unless a Reich law determines it explicitly. By contrast with many
former state constitutions, legislative infringements are now authorized by the “Ge-
meinwohlklausel”8 : property binds. Its use is to be a duty for the common wellbeing
at the same time, Art. 153 Subsection 3 of the WRV.
Definitely not an uncontroversial reform: The draft constitution of the German
Reich (bill III.) from the 17th of February 1919 did in fact contain the formulation
that property is infrangible in Art. 37, but not the Gemeinwohlklausel. The third
Subsection of art. 153 is added later, it can be found in bill V from the 18th of June in
1919 as Art. 150 Subsection 3. There are no complaints against the provision at the
national assembly9 ; it seems like they agreed beforehand in separate negotiations.
In the end the Gemeinwohlklausel is adopted by only narrow majority though—a
legislative compromise between liberal and socialist ideas for the contemporaries
(Kühne 2011, 45).
The Gemeinwohlklausel is interpreted more and more conservatively. The estab-
lished doctrine sees it rather as a plea towards the legislator, but not as directly
applicable law; the individual shall not be able to infer their rights. The Handkom-
mentar zur Weimarer Reichsverfassung treats the provision as requirement including
the duties of a proprietary (Gebhard 1932, Art. 153, 11). It yet is regarded not concrete
enough to constitute directly applicable individual statutory duties. As a consequence
the provision was seen only as a general sentence: Property should be guaranteed by
the contemporary social spirit. The legislator considers turning the basic principle of
the provision into a guideline.
The Taschenkommentar für Studium und Praxis refers to a basic obligation
towards the community as a whole, too (Giese 1931, Art. 153, 6). The protection
of property be not an end in itself, but caused by public social interests. As a result
exercising this individual right be bound by social aspects. Its use may only serve a
particular interest insofar as public interests are supported. The direction obligates
the citizen only morally and not legally though. Equally the multivolume Kommentar
zu Grundrechten und Grundpflichten der Reichsverfassung (Schilcher 1930, vol III,
244). The opposite position is represented only by Martin Wolff (1872–1953) who
lost his professorship in Berlin in 1933 and emigrated to England (Wolff 1923, 10):
The phrase “property binds” meant a double obligation for every private property
law: the duty to practice right when it correlates the public interest as well as the
duty to practice right as demanded by public interests.
8 The Gemeinwohlklausel guarantees legally protected rights of the community.

9 Article 153 of the WRV is debated in the 71st conference of the 31st of July in 1919.
118 M. Löhnig
The Reichsgericht interprets the property guarantee during the Weimar Republic
as characteristic of the liberal legal and economic regime. It supposes disappropri-
ation in favor of the proprietary who is afflicted by property restrictions and grants
him payment of compensation when his absolute property right is affected by third
parties. Carl Schmitt (1888–1985), who acts as a Nazi Crown Jurist shortly after,
points out that the Weimarer Reichsverfassung rather causes a property restriction
and that the Reichsgericht now exceeds the degree allowed in the 19th century instead
of guaranteeing an individual protection of property (Schmitt 1929, 495).
5.4 Excursus: (No) Reception of Duguit in Germany
Duguit and his work is not received within the years of the Weimar Republic. Only
Gustav Radbruch (1878–1949), a legal scholar from Heidelberg and temporary Reich
minister of justice, sporadically quotes him; though later some people assert that
Duguit was decisive for him (Scholler 1999, vol XV, 8). Carl Schmitt once mentioned
Duguit negatively (“missing the sense of the idea of sovereignty” (Schmitt 1932,
40)).10 Nazi jurists do not invoke Duguit, although substantial common features
exist especially in the field of property doctrine: now the ownership obligation is
in the focus of interest and not the rights of the owner anymore (Cf. Eichler 1938,
79, 236). The same applies to the combat of the category of the subjective right (Cf.
Peter 1949). Duguit significantly gained more influence during the development of
the fascistic concept of property in Italy (Keiser 2015, 164). But for Ernst Forsthoff
(1902–1974), a prominent professor for constitutional law in the Third Reich, the
French juristic socialism and especially Duguit should have been an important source,
which he partly received directly and partly by taking the detour of the italian fascism
(Meinel 2011, 112). Anyway, in the 1930s two dissertations occur in his setting which
both also deal with property issues and mention Duguit.
The first monograph on Duguit written by a german legal academic, the above
mentioned Dieter Grimm, is published in 1973 (Grimm 1973). After recommendation
of his teacher Helmuth Coing (1912–2000), the director of the Max Planck-Institute
in Frankfurt, Grimm occupied himself with Duguit. Already in the beginning of the
1960s he went to Paris, but came back to Germany with lots of material but without
any plan. Only when developments are arising, which later became part of the history
as “1968”, he returns the issue. According to Grimm suddenly Diguit appeared to
him in a different light. His criticism of the category of the subjective right is just
a by-product of a much more detailed and widespread criticism of the legal system
and legal thinking; he criticised it as idealistic and individualistic and wanted to
replace it by one which is realistic and social, gained through studying facts (Grimm
2017, 53). In the Zeitschrift für Rechtsvergleichung a review of Grimm’s dissertation
appeared, which correctly determines that now the german speaking audience gets
an opus, which, so far, was only mentioned in footnotes. Wrongfully, because this
10 “den Sinn des Souveränitätsgedankens verfehlend” (translation provided by the author).

opus contains a few, still current concepts on a proper theory of constitutional law
regarding an economic and welfare state of the present. Grimm is able to point out
Duguit’s attitude and thinking towards actual problems. But a Duguit-reception in
Germany stays away until today.
5.5 Social Conditions of Property Rights Under Applicable

Law
Art. 14 of the now applicable basic law (Grundgesetz, GG) of 1949, expresses the
social conditions of property rights in three rules. They directly connect with the
rules of Art. 153 WRV (Dietlein 2006, § 113, 2158)—the fundamental decisions
were made hundred years ago within the lifetime of Duguits and not revised. The
content and legal barriers of the property are determined by law, Art. 14 I 2 GG. The
expropriation is permissible only for the public good and may be ordered only by or
pursuant to a law; but only in case of a compensation, Art. 14 III GG. Apart from
that a common wheal clause exists: “With ownership comes responsibility. The use
of the property should help the public good at the same time.”, Art. 14 II GG.
The meaning of the clause is nowadays discussed as well as the common wheal
clause of the Weimar Constitution. It is partly claimed that use restrictions and
restrictions on disposal directly result from Art. 14 II GG, without requiring a con-
crete law. The opposing view, which nowadays predominate, considers Art. 14 II
GG just as a message to the legislator to pursue the aim of social responsibility of
ownership (Maunz-Dürig 2017, Art. 14, 306). The Federal Constitutional Court sup-
ported this approach (Bundesverfassungsgericht [German Constitutional Court], 1
BvR 92, 96/71, 12 Mar 1981 reported in BVerfGE vol. 56, 249, 260). Thereby the
public service obligation has two different functions: It is a point of orientation and
a limitation of property by the legislator.
The Federal Constitutional Court considers (unlike the Reich Court) ownership
restrictions, which result from the social obligations of property, not as an expro-
priation with compensation consequences. Following the traditional concept of the
19th century an expropriation only occurs in case of half or complete removal of the
property in order to fulfil public duties.
Indeed, besides, the state is not allowed to regulate private property at discretion.
The discretion of the legislator is limited by the requirement of a fair consideration
of all interests. The Federal Constitutional Court points out that both elements the
relation of the constitutional guaranteed legal position of the owner contained in
the Constitutional Law and the requirement of a socially fair property ownership
must be taken into account in the same way (Bundesverfassungsgericht [German
Constitutional Court], 1 BvR 638, 673/64; 200, 238, 249/65, 18 Dec 1968, reported
in BVerfGE vol. 24, 367, 389). Apart from that the worth protecting interests of
the persons concerned should be fairly balanced against one another. An one-sided
120 M. Löhnig
preference or discrimination is not consistent with the constitutional concept of a

socially bound private property.
Furthermore, the legislator is bound to the principle of proportionality. If he wants
to intervene in a constitutionally protected right like the property, he has to choose
the least restrictive measure and to ensure a fair balance between the severity and the
profit of the intrusion. For example, it does not infringe the principles of proportion-
ality to hinge the right of termination of the renter for residential leases on legitimate
interests of the renter in the withdrawal of the rental contract like it was established
after the First World War. The residential property is of special social importance
as many people cannot afford an own living space (Cf. Maunz-Dürig 2017, Art. 14,
308–338).
Of course, case-by-case decisions cannot arise out of these formulations. It is
the task of the Federal Constitutional Court to find the balance between property
protection and social restrictions for every single case.
References
Bundesverfassungsgericht [German Constitutional Court], 1 BvR 638, 673/64; 200, 238, 249/65,
18 Dec 1968, reported in BVerfGE, vol 24, 367
Bundesverfassungsgericht [German Constitutional Court], 1 BvR 92, 96/71, 12 Mar 1981 reported
in BVerfGE, vol 56, 249
Coing HH, Wilhelm W (eds) (1979) Wissenschaften und Kodifikation des Privatrechts im 19,
Jahrhundert, Vol 4: Eigentum und industrielle Entwicklung. Wettbewerbsordnung und Wettbe-
werbsrecht, Klostermann, Frankfurt/Main
Dietlein J (2006) Die Eigentumsfreiheit und das Erbrecht. In: Stern K (ed) Das Staatsrecht der
Bundesrepublik Deutschland, vol 4/1. Beck, München, p 2126
Eichler H (1938) Wandlungen des Eigentumsbegriffs. Böhlau, Weimar
Gebhard L (1932) Handkommentar zur Weimarer Reichsverfassung. Schweitzer, München
Gierke O (1889) Der Entwurf eines Bürgerlichen Gesetzbuchs. Duncker & Humblot, Berlin
Gierke O (1899) Die Soziale Aufgabe des Privatrechts. Springer, Berlin
Giese F (1931) Die Verfassung des Deutschen Reiches. Taschenausgabe für Studium und Praxis.
Heymanns, Berlin
Grimm D (1973) Solidarität als Rechtsprinzip. Athenäum, Frankfurt/Main
Grimm D (2017) Ich bin ein Freund der Verfassung. Wissenschaftsbiographisches Interview. Mohr
Siebeck, Tübingen
Ihering R (1866) Geist des römischen Rechts auf den Stufen seiner Entwicklung. Breitkopf &
Härtel, Leipzig
Ihering R (1877) Der Zweck im Recht. Breitkopf & Härtel, Leipzig
Keiser T (2015) Eigentumsrecht im Nationalsozialismus und Fascismo. Mohr Siebeck, Tübingen
Kühne JD (2011) Die Genese des Eigentumsschutzes in der Weimarer Reichsverfassung. In: Preine
FJ (ed) Nachdenken über Eigentum. Nomos, Baden-Baden, p 37
Löhnig M (2017) Zur Geschichte des Verbraucherrechts vom Abzahlungsgesetz (1894) bis zum Aus-
bruch der großen Verbraucherschutzdebatten der 1960er Jahre. In: Kannowski B, Schmidt-Kessel
M (eds) (2017) Geschichte des Verbraucherrechts. Jenaer Wissenschaftliche Verlagsgesellschaft,
Jena, p 91
Meinel F (2011) Der Jurist in der industriellen Gesellschaft. Ernst Forsthoff und seine Zeit.
Akademie Verlag, Berlin
Mugdan B (1896) Motive zum Bürgerlichen Gesetzbuch. Decker, Berlin
Oestmann P (2013) Mietrecht, §§ 535 ff BGB. In: Schmoeckel M, Rückert J, Zimmermann R (eds)
Historisch-kritischer Kommentar zum BGB, vol III/1. Mohr Siebeck, Tübingen
Pagenstecher EA (1857) Die römische Lehre vom Eigentum in ihrer modernen Anwendbarkeit.
Bandel & Schmitt, Heidelberg
Papier J (2017) Art. 14 GG. In: Maunz T, Dürig G (eds) Grundgesetz. Beck, München
Peter H (1949) Wandlungen der Eigentumsordnung und der Eigentumslehre seit dem 19, Jahrhun-
dert: ein Beitrag zur neueren Geschichte des Zivilrechts. Sauerländer, Aarau
Planck G (1889) Zur Kritik des Entwurfes eines bürgerlichen Gesetzbuches für das deutsche Reich.
In: Archiv für die civilistische Praxis, vol 75, p 327
Planck G (1897) Kommentar zum BGB. Guttentag, Berlin
Repgen T (2001) Die soziale Aufgabe des Privatrechts. Mohr Siebeck, Tübingen
Schilcher H (1930) Art. 153 WRV. In: Nipperdey HC Die Grundrechte und Grundpflichten der
Reichsverfassung. Hobbing, Berlin, p 440
Schmitt C (1929) Die Auflösung des Enteignungsbegriffs. In: Juristische Wochenschrift, vol 58, p
495
Schmitt C (1932) Der Begriff des Politischen. Duncker & Humblot, Berlin
Scholler H (1999) Radbruch Gesamtausgabe vol 15: Rechtsvergleichende Schriften. Müller, Hei-
delberg
von Savigny FC (1837) System des heutigen römischen Rechts. Veit, Berlin
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Wolff M (1923) Reichsverfassung und Eigentum. Mohr Siebeck, Tübingen
Chapter 6
of Property—Norway
Geir Stenseth
Abstract Léon Duguit’s vision of a new legal approach entailed dismantling the
metaphysical and individualistic legal system, and replacing it with a realistic and
social system of law. Probably no society has carried out such a vision as has Norway,
which to a large extent has abandoned comprehensive legal concepts and opened
itself up for real world considerations as a valuable source of law. Despite of this
there are scant references to Léon Duguit in Norwegian legal scholarship, with one
significant exception: Law Professor Ragnar Knoph (1894–1938), who is regarded
as one of the most influential Norwegian legal scholars. His knowledge of French
law and jurisprudence—including the works of Léon Duguit—put a distinctive mark
on his writings. This chapter explores how Léon Duguit did influence the legal
thinking of Ragnar Knoph, and how the interaction between political institutions,
legal institutions and legal scholarship has promoted social progress through law
and developed the social function of property in Norway.
Keywords Nordic Realism · Scandinavian Legal Realism · Legal culture · Legal

pragmatism · Real world considerations · Subjective rights · The substance of
property rights · Legal consequences of inactivity · Legal standards · Real
property · Functional property concept · Expropriation · Regulatory takings
compensation · Non-compensatory regulations · The social function test · The
European Court of Human Rights (ECtHR)
6.1 Introduction
Probably no society has carried out Léon Duguit’s vision of law as a social func-
tion as has Norway. In particular, since World War II, there has been a remarkable
interaction between political and legal institutions (including academia) to promote
social progress through law. The law—and its institutions—have been used as tools to
G. Stenseth (B)
Faculty of Law, Department of Private Law, University of Oslo,
Karl Johans gate 47, 0162 Oslo, Norway
e-mail: geir.stenseth@jus.uio.no

124 G. Stenseth
build an egalitarian society with a strong welfare state and a protected and accessible
natural environment as some of its cornerstones.
Léon Duguit’s vision of a new legal approach entailed dismantling the metaphys-
ical and individualistic legal system, and replacing it with a realistic and social
system of law. And Norway is doing well: The Norwegian legal system, which to a
large extent has abandoned comprehensive legal concepts and opened itself up for
real world considerations as a valuable source of law, has for sure been transformed
from a system that is metaphysical and individualistic to one that is realistic and
social. Or maybe the Norwegian legal system never was sophisticated enough to
become metaphysical and individualistic in the first place, but in reality it evolved
from a primitive mix of legislation, precedent and (more or less) common sense, to
a more advanced mix of ingredients?
The idea of law that underlined the Norwegian legal culture throughout the
20th century has been labelled Nordic Realism. That kind of realism has primar-
ily appeared as functionalism. A majority of legal scholars have treated law as a tool
to make social progress; law has been treated as a means to an end, or, if you like,
a social function. Such an approach has kept legal scholarship realistic and prag-
matic—theory and practise have been interlinked, and theoretical efforts have been
cooperative with all three branches of government (Michalsen 2007, 121).
Scandinavian Legal Realism, on the other hand, was a jurisprudential movement
to destroy the influence of metaphysics upon legal thinking and to provide the secure
philosophical foundation for scientific knowledge of the law (Bjarup 2005, 1). This
movement included a kind of formalism and absolutism that distinguished it from
the pragmatic take of Norwegian legal culture (Michalsen 2007, 121), but has still
been incorporated in mainstream legal scholarship and practice in an (unsurprisingly)
pragmatic manner.
For sure, both Nordic Realism and Scandinavian Legal Realism are related to
Léon Duguit’s vision of law, and indeed his specific expression of it: to replace a
metaphysical conception of subjective right by a realistic and social system of law.
Duguit’s take on subjective rights shares with Scandinavian Legal Realism the
attempt to “prove” philosophically that they cannot exist. Like the Scandinavians,
Duguit claims that subjective rights rest on an unsustainable metaphysical and erro-
neous conception.1 In particular, the Scandinavian legal realist Alf Ross relates to
Duguit’s philosophically based critique of subjective rights (Ross 1957, 817; Ross
1959, 186–188, 256–257).
Ross’ view promoted the development of a functional property concept in Norway:
a comprehension of property that manifested itself in the 1960s. According to this, the
property concept is fundamentally an unnecessary legal one, as it lacks any empirical
1 Infact, by reference to Auguste Comte, he claims that the concept of subjective rights represents
“a contradiction ‘in adjecto’ … If man is examined isolated and wholly cut off from his fellow
beings, he has no rights and can have none. … The individual, therefore, can have rights only so
long as he lives in society and only by reason of the fact that he lives in society … And as we
have already shown that man as a member of society can in reality have no subjective rights, the
entire system of law based upon the conception of subjective right and the individualistic doctrine
crumbles, destroyed by its own false premises.” (Duguit 1918, 73).
6 The Importance of the Social Function of Property—Norway 125
referent. We need consider only the different functions that are incorporated in what
has become known as property. Then, to speak of property is useful only as a collective
term for pedagogical purposes.
An attempt to reject the idea of subjective rights by formalistic means may be
interesting enough, theoretically, but it is what Duguit offers instead that really
provides new legal tools: the “new system” that “rests upon a purely realistic idea
[…]: that idea is social function” (Duguit 1918, 73). So, even though an absolutist
attempt to reject the idea of subjective rights may be hard to digest, the new system—a
legal system aimed to carry “solidarity or interdependence by reason of similarity of
interests”—is more intuitively sympathetic, at least viewed from present day Norway
(Duguit 1918, 75).
Still, even in the late 19th century Norway Duguit’s idea of law was easily adapt-
able. Even though the scarce contemporary Norwegian legal scholars had subscribed
for some decades to the influential German legal constructivism (Begriffsjurispru-
denz), there was a long tradition of pragmatism: a down-to-earth approach by legal
scholars, including interplay between legal theory and legal practice, as well as inter-
play between legal and economic theory.
When Ihering sparked the sociological turn in legal scholarship, Professor Fredrik
Stang (1867–1941), who was the leading force in the Norwegian reception of the
sociological movement in law, earned extra traction by pointing back—beyond the
constructivists—to “classic” Norwegian pragmatism. This was at the turn of the
century, and Stang was certainly inspired by the sociological turn in French law
and scholarship. In 1935 he wrote that a sociological view flows early into French
legal scholarship: In reference to Comte, Tarde, and Durkheim, he concluded that
sociology had affected legal scholarship as a whole (Stang 1935, 134).
We know that Stang made a scholarly visit to Paris in 1905, but there are no
indications that he was in direct contact with any of the legal-sociologists during his
stay in Paris. Neither have we found any direct reference to Léon Duguit in Stang’s
writings, and despite the remarkable influence the sociological movement had in
Norway, there are scant references to Léon Duguit in Norwegian legal scholarship.
With one significant exception: Law Professor Ragnar Knoph (1894–1938).
Knoph is regarded as one of the most influential Norwegian legal scholars (the
lawyers have treated him as a legal icon, genius and infallible, as one of his biogra-
phers puts it) (Halvorsen 2002, 290). One of his advantages was that he was a skilled
reader of the French language. In a time when much of the attention traditionally
had been called to German law and legal scholarship, he made several scholarly
visits to France, and his knowledge of French law put a distinctive mark on his
writings. Knoph, who was a student of Fredrik Stang’s, wrote a legendary textbook
called “Oversikt over Norges rett” (An overview of Norwegian Law) (1934), which
extended Stang’s fundamental legal view. In his diary, Stang wrote that Knoph’s book
was built on a sociological and economic basis (Holmås 2006, 132).
Property law was not one of Ragnar Knoph’s specialities, but in a 1927 article
on anti-trust legislation, he summarized (much along the same lines as Duguit did
in the Buenos Aires lectures) how the ideas of society and solidarity gained terrain
over liberalism and individualism in legal scholarship as in legislation (Knoph 1927,
126 G. Stenseth
1025–1039). When it came to private law issues, he devoted the most space to contract
law. But he paid an important visit to property law, including a distinct focal point:
Léon Duguit.
In flattering terms he named Duguit one of the best known and probably one of
the first who (– with great talent and artistic life –) gave an account of the trans-
formation in question. Knoph praised Duguit’s thorough and well known portrait
of the metamorphosis of the subjective rights, first and foremost when it comes to
the prototype of subjective rights, real property. From being a sacred and inviolable
right, as expressed in the Declaration of the Rights of Man, comprising the uncon-
trolled individualism that unconditionally empowered the owner to use, or not to use,
his property at the act of his own sweet will, Knoph emphasized that property law
was rather transformed into what Duguit in approval of Auguste Comte calls «une
fonction sociale» (Knoph 1927, 1038).
Knoph teams up with Duguit, claiming that the power to possess and use an object
is given the owner because he is supposed to treat it in the best interest of the society.
The exercise of the property rights becomes in fact a social function, and this shift
does not only appear as limitations on the property rights, but also as a direct duty to
use the object for the social aims by which the property rights basically are granted
(Knoph 1927, 1038).
Maybe Knoph was provocatively edgy, but his perspective was by no means
radical. As indicated, Stang paved the way in general terms. And when it came
to property law, Law Professor (and later Chief Justice of the Supreme Court of
Norway) Herman Scheel predated Knoph by emphasizing the common good as the
foundation of the property concept. In “Norsk tingsret” (Norwegian Property Law)
of 1912, he claimed that the aim of the common good is the fundamental reason why
possessions are protected and recognized by society as property. Because of this,
property rights can be exercised only within the scope of the common good, and that
is why regulations on and limitations of property rights cannot be conceptualized as
restrictions, Scheel emphasized. As much as we may talk about restrictions on the
property owner, we may be talking about property as restrictions on the free utility
of things by the society, Scheel claimed. Therefore, property rights are always bound
to be defined by the legal limitations decided by the society in question; no more, no
less (Scheel 1912, 18–21, 160–161).
Scheel made no explicit reference to Duguit. There is no doubt, however, that
Scheel, like Dugiut, crowded out the metaphysical conception of subjective rights
and conceptualized the idea of property as a social instrument. In line with this, he
already in a 1907 article promoted the common good as the foundation and aim of any
legal system, and, accordingly, he promoted real world considerations as a source
of law (as a critique of the orthodox practice of squeezing new facts and practices
into old narrow moulds at all costs, like Duguit put it) (Scheel 1907, 258–262; cf
Duguit 1918, 117). In fact, the 1907 article was based on a lecture given as early
as 1892 (speculations have been made that Scheel preferred to wait for a friendlier
environment before publishing it) (Slagstad 2011, 320). In 1940 Scheel emphasized
his viewpoint again, in an article wherein he reiterated that property rights can be
exercised only within the scope of the common good (Scheel 1940, 137–138).
6.2 Legal Precedent
A landmark Supreme Court opinion that proved Knoph and Scheel to be on the right
track was decided in 1918 (Norsk Retstidende 1918, 403). In that case, the Court
considered the constitutionality of a new statute that put limitations on the free trade
of property rights.
The Norwegian Constitution dates back to 1814. In fact, it is the second oldest con-
stitution still in function (beaten only by the U.S. Constitution). Consistent with the
constitution in general, the property protection clause—Article 105—was inspired
by the Anglo-American and the French constitutional documents of the late 18th cen-
tury. Like the Takings Clause of the Fifth Amendment, the Norwegian Constitution
ensures that if property is taken for public needs, just compensation is to be granted:
“If the welfare of the state requires that any person shall surrender their movable or
immovable property for the public use, they shall receive full compensation from the
Treasury.”2
Unlike the continental European jurisdictions (notably France, as Duguit stressed),
but similar to the situation in the United States, the legal concept of property had
not been codified in Norway. Since the Norwegian Takings Clause does not offer
any positive definition of property, the Norwegian legal concept of property has
largely been designed by courts and legal scholars with a particular focus on the
line between expropriation, which is subject to mandatory compensation (due to the
Takings Clause) and non-compensatory regulations.
According to a 1909 statute, the owner of a waterfall would be allowed to sell
the waterfall (for the purpose of hydroelectric power production) only on the con-
dition that the property rights of the waterfall (including the hydroelectric power
plant) would be transferred to the Norwegian state for free after 80 years. Due to
this, a seller—who had got a lower price than he would have had without such
a clause—sued the Norwegian government and claimed that the 1909 statute was
unconstitutional and void, and if not, he claimed compensation. The Supreme Court
found unanimously that the 1909 statute was not void. On the compensation question,
there was dissent.
The minority of three justices recognized the right for the state to control and
regulate property, as long as it did not affect the substance of property rights: the
state could not make it impossible or difficult for the property holder to use their
individual rights. The minority of justices claimed that social needs should not be
fulfilled at the expense of the individual, as property rights rested on an autonomous
foundation: In my opinion, a legal view that private property, as subjective individual
property rights in general, are granted as a gift of grace by the state, is alien to the
spirit of the Constitution (Norsk Retstidende 1918, 403 at 409).
2 The Constitution of Norway was laid down on 17 May 1814 by the Constituent Assembly of the
Stortinget [The Norwegian Parliament] at Eidsvoll and subsequently amended, most recently in May
2016. It is accessible at: https://www.stortinget.no/globalassets/pdf/english/constitutionenglish.pdf.
Accessed 26 January 2018.
128 G. Stenseth
But the majority of four justices held that property rights are exclusively defined
by the legislation at any given time. The only limitations the legislator has to obey
are the limitations set forth in the constitution. The majority argued, however, that
the Norwegian Constitution did not recognize any individual right for the owner to
utilize their property rights as they wish: Article 105 did not protect what had been
named the substance of property rights (namely, its essence or inner nature). What
the constitution protects, the majority reasoned, is the right to be compensated in
the case of expropriation. And that is the case when the state takes property away
from the owner, but is not the case when the state—in the interest of the society—
prohibits a certain use of property or otherwise regulates how the property holder
legally may—or must—use their property rights.
It was settled. Property had been transformed from uncontrolled individualism
into «une fonction sociale», as Knoph put it in the 1927 article. The focal point was
no longer “the absolute and exclusive quality of property,” “absolute in duration and
in effect,” as “power to enjoin upon others respect for my will to employ as I choose
the thing that I possess as owner,” as Duguit had recapitulated it (Duguit 1918, 70,
131). Property was now treated positivistically in Norway; the focus had shifted
to text interpretation. Fundamentally, the state had assumed the power to design
property rights in ways that best serve society. The only limitations on that power
were positively created by the constitution, and were operationalized by interpreting
the wording of the constitution, not by speculations on an a priori absolute and
exclusive quality of property.
The Supreme Court has, for the most part, stuck to this principle until the present,
in the sense that there are almost no constitutional restrictions on the parliament’s
power to regulate property without paying any compensation to the owner. In fact, the
ruling of 1918 paved the way for natural area and natural resource preservation on a
large scale in Norway—also in reference to privately owned land. Such preservation
could happen at a low cost for the Norwegian government, and today over 17% of
mainland Norway is protected in such a way.
The Supreme Court judgement of 1918 is an interesting example of both the
strengths and weaknesses of Duguit’s approach. He was at the forefront of challeng-
ing private law concepts by not only bringing public law elements into the private
law sphere, but also by arguing that public law considerations ought to be the foun-
dation and lodestar for the whole body of private law. The Supreme Court majority
rested its opinion on such a deconstruction of private law—in particular its property
concept. It refused to rely on the substance, inner nature or essence of property as
guidelines. Instead, limits were indeed put on the property rights in question due to
apparent, substantial, threats to future social and economic developments, threats that
the legislative branch had deemed necessary to protect the society against (Norsk
Retstidende 1918, 403 at 406).
So far, so good: The old, metaphysical comprehension of property was rejected
to facilitate a social function of property. But thereafter, the Supreme Court majority
departed from Duguit’s approach. It stated that courts have no mandate to evaluate
the legislator’s social considerations, or to determine if the legislator had assessed the
real, or possible, threats correctly. In other words: The Supreme Court left it entirely
to the legislator to decide how property ought to serve a social function, within the
limits of the text of the constitution (Norsk Retstidende 1918, 403 at 406).
According to Duguit, however, equalizing law to the text of the constitution and
the legislation at any given time did not represent the “fonction sociale.” His vision
of law was heavily influenced by Emilie Durkheim’s ideas. Julius Stone, for instance,
points to how closely Duguit’s criterion of justice is interlinked with his view on law
and society, and how he comprehended the latter relationship in line with Durkheim:
That the progress of human society presents a shift to organic society, based on
highly specialized heterogeneity of functions. Thus, law becomes an instrument for
securing and regulating the operation of a complicated but close-fitting system of
specialized functions (Stone 1965, 161):
However, each individual has a certain function to perform in society, a certain task to
fulfil […] [A]ll acts contrary to the function which devolves upon him will be restrained by
society; but all his acts done to further the mission which is his by reason of his position
in the community, will be protected and guaranteed by society. Herein appears very clearly
the social basis for a specific rule of law or for objective law. It is both realistic and social:
realistic, in that it rests upon the fact of social function observed and proved at first hand;
social, in that it rests upon the essentials themselves of social life (Duguit 1918, 74–75).
This implies that the legislation itself, and even the constitution, have to be subject
to the social function test. And, as Julius Stone puts it, Duguit “pushed these ideas
to the point of saying that even the supreme legislator is in no different position, so
that (independently of any written constitution) these acts do not bind unless they
conform to social solidarity—la règle de droit” (Stone 1965, 162).
How to conduct such a test is another question. Duguit calls on “the State, the
voice of objective law” to interfere to forbid actions that are not consistent with the
social function imperative: “Where the State does so it impairs no so-called right,
but simply applies the law of social solidarity, which is the fundamental law of all
modern communities” (Duguit 1918, 80–81). Then, the courts should assumingly
apply the law of social solidarity as an ultimate check on all cases brought before
them. According to Stone, Duguit suggested in fact (“rather vaguely”) that the courts
should have the power of striking down statutes inconsistent with the social function
imperative (Stone 1965, 163).3
So, when the Norwegian Supreme Court backed off from evaluating the legis-
lator’s social considerations, it did not fully implement the social solidarity test. In
fact, it rather indicated the purified Norwegian legal realism of the post-World War II
era, in which law—and the courts—acted as an instrument for social progress rather
than claiming the power to define such a social concept.
The Norwegian Supreme Court’s approach also points to a striking paradox of
Duguit’s philosophy. After throwing out every natural right and metaphysical con-
ception of law, the courts were supposed to tackle a different vague imperative, the
social function, the law of social solidarity. This is a demanding task, to say the least.
3 Stone adds that Duguit even proposed “for this purpose the establishment of ‘a high tribunal
composed equally of representatives of all the social classes, which would judge, so to speak, of
the legality of the law’” (Stone 1965, 163).
130 G. Stenseth
Such a test might easily be comprehended, like Julius Stone, as “an inaccessible mys-
tery to the end”, in many ways similar to Ihering’s social utility concept (Stone 1965,
158). Yes, social solidarity and social utility do direct our attention to important facts
that must be considered, but neither provides a measure of the values necessary to
complete the judgement: “Duguit stopped short of enumerating the concrete dictates
of his principle of social solidarity just as Ihering stopped short of enumerating the
dictates of social utility” (Stone 1965, 165–166).
Obviously, the Norwegian Supreme Court did not find it tempting to take on a
vague social function test, neither for legislation, nor for the constitution.
6.3 Public Law—Legal Standards
But Ragnar Knoph—the Duguit supporter—was clearly not satisfied. In his view, a
sort of social function test would have improved and made the property concept in
Article 105 of the constitution less dichotomous. On the one hand, it had become
too harsh on owners whose property rights were almost seized, but not taken, by
regulations; on the other hand, it might grant too generous a compensation in certain
takings situations, according to Knoph (Knoph 1939, 110–113). Furthermore, the
dichotomous perspective on the property concept would also spill over to the tra-
ditional private law sphere, thus remaining too stiff and inflexible to serve a proper
social function.
Inspired by (among others) Roscoe Pound, Knoph saw a legal standard approach
as a means to operationalize a social function test for property rights. In the landmark
1939 book “Rettslige standarder” (Legal standards) he promoted a legal standard
approach to the constitutional ban on retroactive legislation (Constitution Article 97)
as well as to the Takings Clause in Article 105.
If Article 105 of the constitution were to be treated as a legal standard, it would
become applicable to regulatory takings situations as well. And by the legal standard
approach (in stark contrast to the minority in the 1918 case) Knoph did not need to
rely on any universal autonomous foundation of property rights to justify regulatory
takings compensation: the legal standard approach would provide the courts with
tools to grant compensation on a case-by-case basis (Knoph 1939, 111–112).
As a point of departure, Knoph called attention to regulations that are significant,
and as such should be subject to compensation, as opposed to insignificant regulations
that the owner should tolerate without compensation. However, such a guideline—
significant—he admits would be too broad and vague to become a real legal standard:
surely a legal standard is not equal to mere unbound judicial discretion. Knoph
claimed that a legal standard refers to a certain scale, and that scale is created by
social norms (Knoph 1939, 4).
Citing Pound, he offered three defining characteristics: (1) Legal standards involve
a certain moral judgment upon conduct: It is to be fair, or conscientious, or reason-
able, or prudent, or diligent. (2) Legal standards do not call for legal knowledge
exactly applied, but for common sense about common things or trained intuition
about things outside of everyone’s experience. (3) Legal standards are not formulated
absolutely and given an exact content, either by legislation or by judicial decision,
but are relative to times and places and circumstances and are to be applied with
reference to the facts of the case in hand. They recognize that within fixed bounds,
each case is to a certain extent unique (Knoph 1939, 3–4).
However, Knoph was somewhat reserved when referring to the first character-
istic—the idea of moral judgment. In his opinion, that might imply too narrow a
norm. The norm should be more like proper social behavior, for instance what is
customary or likely behavior. That would represent social norms in a wider sense: not
necessarily moral norms (Knoph 1939, 4). By this, Knoph’s theory would enable the
courts to administer a sort of social function test, but under full consciousness of that
the judges “clearly understand that it is a standard they are applying” (Helgadottir
2006, 121).
As Ragnhild Helgadóttir has thoroughly pointed out, Knoph was not influenced
by Roscoe Pound alone. In fact, he directly connected his legal standard theory to
the contemporary constitutional situation in the U.S. Let’s pay attention to his own
words:
The development in the United States is very instructive to us Norwegians. Even though
the form is different, the guarantees of the Constitution have the same practical goals and
nature and they can be interpreted in two different ways, no matter on which side of the
Atlantic: Either as rigid, absolute legal rules trying to fence in legislation once and for all or
as flexible standards that are capable of evolving and try, in changing times and changing
circumstances, to realize the ideal of justice between the state and the people. With plastic
clarity, the American developments show us the results of these two alternatives: While
the Constitution was interpreted as a standard everything was peaceful. But when the other
understanding won majority in the Supreme Court and was practiced for years, with dire
results, the picture changed (Helgadottir 2006, 122).
Only after President Roosevelt’s court-packing plan (a most doubtful move only
legitimized as a last resort in a dangerous, revolutionary, situation) (Knoph 1939,
187–188), the justices put their ears to the ground and switched back, (Knoph 1939,
190) Knoph warns us, cautiously stating that how deep and lasting the switch the
Supreme Court made in the eleventh hour is still too early to say (Knoph 1939, 190).
Then he made his case for Norway, reflecting the U.S. situation to the Norwegian
1918 case: “The interpretation method in ‘classical’ constitutional theory speaks
for itself, and no less expressive are the dissenting opinions in the waterfall cases”
(Helgadottir 2006, 122–123). If the viewpoints of the minority yet again would
become reality, it would have had the same consequences as in America, he argued.
In fact, as Helgadóttir puts it, Knoph used the American contemporary constitutional
history to make a threat: “were the courts to interpret the constitution rigidly, they
would come into a conflict with the legislature that they could only lose, possibly at
great loss to the constitutional order as well” (Helgadottir 2006, 123). The bottom
line was that courts must always remember that the standard of justice is dependent
on the times and circumstances and is not static (Helgadottir 2006, 121–122)—in
short, that they should subscribe to the legal standard approach.
132 G. Stenseth
The time eventually came for Ragnar Knoph to identify the scale to which govern-
mental property regulations should relate. How do we know whether compensation
should be granted or not? Of course, if the regulations made property useless or
deprived it of all economic value, that created a strong argument for compensation.
If the aim of the regulation was to prevent harmful or dangerous use of property,
that created a strong argument against compensation. Further, the principle of equal
treatment was essential to the Norwegian Takings Clause: if the regulations favored
just a small group of people, that, too, created an argument for compensation (Knoph
1939, 119–128).
These guidelines do not appear to be radical. But Knoph’s fundamental principle,
that it is the role of the courts to check and ultimately decide if different legal out-
comes were in accordance with the times and circumstances—with social solidarity
front and center—was an exhortation to the judiciary that was not necessarily uncon-
troversial. As Helgadóttir emphasizes, despite the 1918 case, the Norwegian courts
had been accused to be insensitive to changes in society and too solicitous of the
interest of property owners: “These accusations were levied in political discussion
and legal theory and they led to constitutional amendments being proposed to either
expressively prohibit judicial review or to repeal the prohibition of retroactive laws in
Article 97, the takings clause in Article 105, or both” (Helgadottir 2006, 123–124).
A 1923 parliamentary debate on these measures exemplifies the point. One pro-
ponent of the amendments pointed to the hard-fought enactment of the statute pro-
hibiting waterfalls to be sold unless they were transferred to the Norwegian state after
80 years. The fact that such a progressive measure (– to the benefit of the people’s
happiness and the prosperity of the country –), had nearly been voted down in the
Supreme Court clearly showed that judicial review and the Takings Clause were not
only a guarantee of social conservation, but rather reactionary in the worst sense
of the word (Sandmo 2005, 139). Another member of parliament—the later Chief
Justice Emil Stang—followed up similarly harshly (Sandmo 2005, 139). When the
motion was debated in the parliament’s plenary session in 1925, the votes of the
1918 case were still a main subject. One Member of Parliament argued that judicial
review was no better than a lottery: if only one justice had changed his mind, it would
have created dire and unforeseeable consequences for the state economy. The later
Supreme Court Justice Johan Castberg—another Member of Parliament—joined in
(Sandmo 2005, 146).
However, the proposed amendments failed (101 parliament members voted no,
33 voted yes), presumably because prohibition of retroactive laws and basic property
protection were comprehended as fundamental legal principles, not only by the elites,
but by the general public (Sandmo 2005, 147). It was also pointed out that abandoning
judicial review in Norway would be contrary to the general tendency in Europe, where
judicial review was acknowledged as a constitutional measure (Sandmo 2005, 142).
Similar constitutional amendments were proposed later as well, on several occasions:
the last one in 1935. All of them were voted down (Sandmo 2005, 140).
So, when the book “Rettslige standarder” was published in 1939, the strong con-
troversies had somewhat faded away. In fact, during the 1930s the Supreme Court
justices reached out to interpret new statutes to be consistent with the constitution,
paving the way for Knoph’s theory of constitutional legal standards. In turn, Knoph’s
book consolidated the path of cautiousness and flexibility, and made a contribution
to the fact that the heated discussions on judicial review did not relight (Sandmo
2005, 167). In 2014, at the bicentennial of the constitution, a judicial review clause
was even formally amended without any substantial debate (Constitution of Norway,
Article 89).
On the other hand, the Supreme Court’s judicial deference to the legislator was, as
indicated, not consistent with a true social function test. When it came to property, the
court did not pick up on Knoph’s recommendation to mute the dichotomy between
takings and mere regulations, but continued to avoid evaluating the social considera-
tions of the legislator, leaving it to the parliament to define property’s social function.
In fact, for a long period of time, courts did not strike down any property regulation
(until a landmark case in 1976, in which the Supreme Court made it clear that the fair
market value still remains the constitutional benchmark for takings compensation)
(Norsk Retstidende 1976, 1).
That said, from a Léon Duguit point of view, there might be no reason to act
differently for the Norwegian courts. There was a mainstream understanding by
all the branches of government to promote social progress, and a large majority
comprehended heavy regulations on property as a legitimate tool to reach that aim.
For decades, the idea of property as a social function was incorporated into society by
the legislative and executive branches. The doctrine of leaving it to the democratically
selected representatives to decide on how property would best serve its social function
was in fact a vital part of that process.
6.4 Private Law—Legal Standards
In Léon Duguit’s vision, the purely individualistic conception of law had to be

replaced by a realistic and social system. The main misfortunes of the old conception
in the sphere of property rights, he argued, were various aspects and consequences
of its absoluteness: in respect to both public power and private interests, as well as
to duration (Duguit [trans: Viven-Wilksch J] (2019), 39; cf Duguit 1918, 132).
He pointed out that property had been comprehended as absolute “towards the
public power which can well impose some restrictions in the interest of regulation,
but can only do so by paying a just indemnity beforehand” (Duguit [trans: Viven-
Wilksch J] (2019), 39; cf Duguit 1918, 132). We have already discussed that aspect.
Now we turn to how Duguit addressed property—and its absoluteness—within the
classic domain of private law. He stressed that the absoluteness of the old conception
empowered the property owner with “the right to not use it, not enjoy it, not dispose
of it and consequently to leave his land without cultivation, his urban sites without
construction, his houses without tenancy and without maintenance, his movable
capital unproductive” (Duguit [trans: Viven-Wilksch J] (2019), 39; cf Duguit 1918,
132). This leads me to discuss how Duguit’s inactivity problem has been treated
134 G. Stenseth
within Norwegian private law. To no surprise, Ragnar Knoph continues to play an

important role.
Make no mistake; the concerns about leaving property unused have mainly been
dealt with within the sphere of Norwegian public law. For instance, the legislation has
long since mandated any owner of agricultural land to cultivate and use it. Ignoring
this would ultimately lead the authorities to carry through a forced sale of the property
in question. The owner’s duties were, in fact, constrained yet further by statutory
amendments as late as 2009.
In legal relations between private parties, however, leaving property unused rarely
had consequences outside the domain of the traditional legal concept of adverse
possession (and some additional scattered provisions here and there) at the time
Duguit’s Buenos Aires lectures were published. Despite promoting the common
good as the proper foundation of the property concept, even Law Professor Herman
Scheel continued to adhere to the classic view that a property right does never
cease to exist due to lack of use (Scheel 1912, 381). In fact, at the time, this was
considered a fundamental truth, beyond limits of discussion (Knoph 1939, 201).
Still, from time to time, the courts were exposed to cases in which the doctrine would
lead to consequences so unequitable that the courts circumvented it altogether, by
constructing a contractual relationship or deferring to the abuse of rights maxim.
For sure, an approach like this—a hiding of the facts of the matter—was not
satisfying to the progressive mind of Ragnar Knoph. As we know, in 1927 he praised
Duguit’s metamorphosis of the subjective rights. Subjective rights were granted to
the owner only to act in the society’s best interest. As Knoph puts it, this shift does
not only appear as limitations on the property rights, but also as a direct duty to
use the object for the social aims by which the property rights basically are granted
(Knoph 1927, 1038). He picks up on this in the late 1930s, in the book “Rettslige
standarder”, elaborating it into a full blown private law theory of loss of individual
(or subjective) rights due to inactivity.
However, in between the publication of the 1927 article and the book, a young
Norwegian legal scholar named Carl Jacob Arnholm had published a treatise called
“Passivitetsvirkninger” (Legal consequences of inactivity) (1932). There, he looked
into the possibility of incorporating different legal aspects of inactivity into a general
legal concept. He was struck by the fact that the idea of inactivity had forced its way
into modern law: It was as though society itself tried to make inactivity into one of the
fundamental concepts on which the legal order rest (Knoph 1939, 202). But in the
end, Arnholm seemed to resign. He found himself unable to phrase such a concept
without adding so many exceptions that it would undermine the project. Arnholm
eventually resolved merely to describe a legal tendency. Despite this, Arnholm’s book
made an impact. Knoph praised it for identifying a legal development toward a more
transparent use of inactivity as a legal argument (Knoph 1939, 213), but the criticism
came: To quit in an untimely manner is a great sin, Knoph stated, with reference to
Arnholm, and set out to fulfil the enterprise to create a new legal standard: inactivity.
I relation Léon Duguit’s project, the legal reasoning Knoph unveiled during his
enterprise is maybe the more interesting one, rather than the end result. The founda-
tion for his effort was a sociological perspective, Knoph stated: the forces that give
rise to the inactivity problem and makes its character (Knoph 1939, 224). Obviously,
Knoph took his point of departure in the discussion of subjective rights. He stated
that subjective rights were no longer identified as an idea a priori, but instead rested
purely on rational and practical considerations by the legal order. Subjective rights
did not exist to materialize dead and abstract principles of the autonomy of the will,
but rather to protect living and concrete interests, and in particular interests that had
been found worthy of protection by the legal order (Knoph 1939, 224).
So, Knoph asked, which were the grounds that made an inactivity standard to
force its way into modern law? The fundamental rationale for granting individual
property rights was to enable the owner to use and protect the object in question.
Thus, any non-use was in principle contrary to the social function of individual rights.
And the drawbacks for society became more significant as time went by, not only
because disadvantages of unproductivity added up, but also because society—like
other organisms, Knoph added—was in a constant state of change (Knoph 1939,
226).4 For instance, the normal psychological reaction to a longer period of non-use
was that the right was comprehended as non-existing by others. By this, inactivity
created a social value for the rest of the society that the law could not ignore, but one
rather had to ask: How would a reasonable and diligent person—with a social sense
of duty and respect for interest of the other—act if they expected to keep their legal
position? Knoph concluded that this standard—acceptable social behaviour—was
the standard that inactivity had to be related to when the courts assessed whether an
individual right should be continued (Knoph 1939, 238).
When time and social development create new social interests in the object in
question, the inactivity standard in fact promotes a kind of dynamic certainty, call-
ing for legal protection, Knoph claimed (Knoph 1939, 254). Such a standard encom-
passes the solidarity and interdependence that society needs: in contrast, an abso-
lutist approach to property rights—to let the owner treat their possessions entirely
and ruthlessly to their own likings—would indeed imply an element of anarchy,
Knoph argued. And as acceptable social behaviour constantly evolves toward social
responsibility, the inactivity standard would become increasingly stricter, he stated
(Knoph 1939, 269). The argument is unmistakably evocative of Duguit’s influence.
Knoph’s book manuscript was finished some ten years after the 1927 article,
in which he acclaimed Léon Duguit and his take on the property concept. In the
intervening years, Knoph had also expressed his admiration for Duguit to the general
public. In 1934, the Norwegian national radio broadcasted one of Knoph’s lectures
on the developments of international and national modern private law (Knoph 1934).
He emphasized the fundamental shift that was going on in property law, from an
individualistic to a social purpose, and gave a series of domestic examples of how the
new approach had found its way into legislation: there were regulations on hunting,
timber production, house building, etc., not to mention restrictions on the freedom
of contract concerning real property. He went on to mention how farmers and forest
owners were obliged to grow food and cultivate their woods, all to serve the needs
of society in the best possible way (Knoph 1934, 20–23).
4 Note that Knoph, like Duguit, subscribes to “a certain biologism” (Brunet et al. 2016, 424).
136 G. Stenseth
Indeed, Knoph did not claim that his legal analyses were original: they had long
since been treated academically, he admitted, referring to Auguste Comte and Léon
Duguit in particular. Léon Duguit, he continued, firmly claimed that subjective rights
belonged to the past, and had changed into social functions, i.e., functions commis-
sioned to the individual by society to be conducted on behalf of society, for soci-
ety’s benefit. However, such a total change had not yet happened in Norway, Knoph
pointed out, as property rights could still be exercised more feely and uncontrolled
than the theory of social function would lead to. Still, Knoph expressively subscribed
to Duguit’s claim that the duties of the property owner towards society undoubtedly
had become an integrated part of private law: By all means, the new social spirit
of law is continuing to reshape subjective rights from being individual prerogatives
into tools in societal service (Knoph 1934, 131–132).
However, Ragnar Knoph’s inactivity standard hardly gained traction in Norwegian
law. It was later claimed to be too vague, or even meaningless (Asland 2009, 74).
Like Duguit’s broad social solidarity test itself, the inactivity standard comprised
important facts to consider in the legal evaluation, but fell short to provide the value
measures necessary to complete the judgement. On the other hand, some of the
elements incorporated in the standard have later become a part of Norwegian property
law.
After World War II, the Norwegians attempted to codify private law.—If fact,
this was the second time the Norwegians had done so, with the first occasion taking
place in 1814. Norway had been in a union with Denmark for some 400 years, and
Denmark-Norway teamed up with Napoleon in the Napoleonic Wars. As Napoleon
lost the Battle of Leipzig, the Norwegians took the opportunity to leave the union,
making its own, modern, constitution at the 17th of May 1814. The founding fathers
of course subscribed to the separations of powers doctrine and very much wanted
the legislature to codify the law of the new nation. Article 94 of the constitution
stated that plan: Within one or at most four years, a civil and criminal code should
be enacted. This would promote certainty and unity in the legal system, and secure
the separation of powers in the spirit of Montesquieu. However, the plan of making a
civil code was abandoned in the mid-1800s. The small Norwegian legal community
was not strong enough to fulfil the enterprise (Michalsen 2011, 357). Instead, the
parliament issued single statutes. One of them was the nuisance law statute of 1887,
which mandated property owners to take into account the interests of their neighbors
when exercising their rights. In fact, that nuisance legislation dealt a significant blow
to the principle of property as an absolute right, in Ragnar Knoph’s opinion (Knoph
1934, 21).
Anyway, right after World War II, the government once again expressed an ambi-
tion to codify private law. Again, the idea proved to be too ambitious, and was
scaled down to the enactment of single statues on various private law aspects, mainly
concerning property law. During the 1960s, in addition to legislation on adverse
possession, new statues were enacted on private nuisance law, co-ownership, and
servitudes. An expert committee had been created to prepare the legislation, called
“Sivillovbokutvalet” (The Civil Code Committee), which—as indicated above—
incorporated some of the elements of Knoph’s inactivity standard.
Sivillovbokutvalet wanted to balance the use of real property in the best way
possible for society against legal certainty for the holder of property rights. Accord-
ingly, it proposed that property rights should be interpreted with due regard to social
changes that would occur after the disputing parties (or their legal predecessors)
entered the legal relationship in question. For sure, the committee paid a courtesy
visit to Roman law: When it drafted the servitude statute, the committee discussed
the concepts of servitutes prædiorum, utilitas fundo and perpetua causa. However,
it pointed out that strict Roman concepts such as these had traditionally never been
a part of Norwegian law, where the law of servitudes had emerged on the basis of
customary law and judicial precedent. The committee also argued that it would be
ill-advised to found the new legislation on Roman concepts, which were created in
a static social context: The classic ideas of for instance utilitas fundo and perpetua
causa would rather be misleading in our time, it stated.5
Instead, the committee chose a dynamic and progressive approach: It argued that
social change would only accelerate in the future, and that the function of servitude
law had to adapt. Likewise, when the committee drafted the private nuisance statute,
it referred to rapid social changes, and emphasized that the nuisance statute needed
to be designed to promote optimal use of the landed recourses, including preventing
the owner from exposing unjust harm and inconveniences.
To be able to get the flexibility needed without unleashing courts entirely, the
committee proposed to codify a legal standard—unreasonable and unnecessary—
that in turn was enacted by parliament. According to the standard, the property
owner may not impose unreasonable and unnecessary harm or inconveniences on
their neighbors; the property owner and the servitude holder have a mutual duty
to refrain from using their property rights to impose unreasonable and unnecessary
harm or inconveniences to the other; and similar duties are also valid in respect to
co-owners.
As already indicated, one important guideline for the judges when assessing the
standard, is to adapt their judgements to social changes. In the legislation on servi-
tudes and co-ownership, that guideline is expressively stated in the statutes (using
terms such as in accordance with changing times and circumstance), while private
nuisance law is subject to an analogous guideline due to judicial precedent. In particu-
lar, changes that are backed by governmental policy might more easily be categorized
as reasonable and necessary—thus legal.
To exemplify, let me use a private nuisance case that the Norwegian Supreme
Court decided in 2011. An owner promoted the establishment of a wind turbine park
for electric energy production on his property (Norsk Retstidende 2011, 780). Then,
a neighbor claimed that the enterprise would have unreasonable and unnecessary
negative effects on his property. However, the neighbor did not successfully con-
vince the judges. A unanimous court held that increased energy production from
wind power had been a prioritized governmental policy for many years, and that
the technological and commercial development had enabled wind power to cover
partly the domestic demand for electric energy. Thus, the enterprise was part of an
5 NUT 1960: 1 Rådsegn 5 Om særlege råderettar over framand eigedom, 31.

138 G. Stenseth
important social change, which was held to be of substantial importance when the
unreasonable and unnecessary standard was applied in the case. The fact that the
wind turbine park was situated in a relatively untouched natural environment was
(expressively) of no relevance to the court, because such enterprises typically had to
be set in areas exactly like that.
The decision is a good example of how the private-public law division has blurred
in Norwegian property law, as—exactly—the social function of property has become
an integrated part of private law (as Duguit suggested). A formal step that cemented
this was an amendment to the legislation on private nuisance and servitudes in 2009.
In addition to the aforementioned guidelines to the unreasonable and unnecessary
standard, an extra guideline was added: biological diversity. When assessing a private
nuisance dispute or a dispute between the property owner and the servitude holder,
the judge is in fact mandated to evaluate what effects the different outcomes of the
conflict will have on biodiversity in the area in question, and the effects (positive
or negative) have to be taken into consideration as one of the factors of the total
assessment. And, in fact, the wind turbine park case from 2011 does not contradict
this. Initially, the neighbor’s areas were planned to be part of the park, but he did not
want to participate in the project. However, the environmental impact assessment
that was made as part of the planning process discovered that the neighbor’s areas
were a Southern Dunlin habitat. Since the Southern Dunlin occurs on the IUCN red
list of threatened species for Norway, it was not desirable to make the habitat a part
of the windmill park. And the poor neighbor had to cope with yet another argument
against his nuisance claim: The chosen area for the park was preferable also with
regard to biodiversity.
So, when it comes to co-ownership, private nuisance and servitudes, the legal
flexibility provided today—a sort of social utility test—would surely please both
Léon Duguit and Ragnar Knoph. However, inactivity on the part of the property
owner has not per se become a part of Norwegian property law. That said, there is
a long and strong tradition for the concept of adverse possession. Both ownership
to property as well as servitudes might be lost, and acquired, due to the adverse
possession legislation. Under the standard conditions, the adverse possessor needs
to possess the land, acting as an owner or as a servitude holder in good faith, for 20
consecutive years (for servitudes the time span is extended to 50 years under certain
conditions).
Despite the strict minimum timespan expressively stated in the legislation, in some
rare occasions the courts have ruled against a property right holder who has been
inactive for fewer than 20 years. As indicated, the courts have not made precedent
for a broad inactivity standard, as Knoph promoted, but have still made an open-
ing for supplementing the adverse possession legislation where there are compelling
reasons to do so. The most recent case of this nature, from 2015 (Norsk Retstidende
2015, 1157), may in fact imply a progressive attitude to the case law: A co-owned
cabin had been badly maintained for years, and in 1992 one of the co-owners,
Mr. Nilsen, set out on his own to remodel it. Eventually he did succeed; after 18 years
of monetary expenses and personal labor, the cabin was standing there as though it
was brand new. Then the co-owners entered the arena. After 18 years of silence and
inactivity, they claimed that they still were owners of their shares in the cabin, as they
had never abolished their property rights. They didn’t oppose Mr. Nilsen’s argument
that he spent time, money and energy on the cabin to remodel it, but they asserted
property rights never cease to exist due to lack of use, and that Knoph’s inactivity
standard had never prevailed in Norwegian law.
Since Mr. Nilsen’s remodeling project fell short of the 20 years rule of adverse
possession, he had to relinquish that argument, and defer to the compelling rea-
sons precedent. The majority, three judges, ruled in favor of Mr. Nilsen; two judges
dissented. The majority opinion and the dissenting vote display interesting sets of
deviating considerations. While the majority emphasizes subjective expectations of
the parties, the minority emphasizes legal clarity and certainty. The most interest-
ing aspect of the opinion, however, is how they considered individual fairness as a
source of law. The majority agues plainly—without any further explanation—that its
outcome is a fair one; it clearly considers fairness as an independent source of law,
alongside legislation and precedent. The minority, however, states that the fairness
argument would not be decisive on their part.
Let’s return to Ragnar Knoph. By his inactivity standard, acceptable social behav-
ior should be the focal point at which courts assess whether an individual right should
continue—in particular, when time has created new social interests in the object in
question, the facts themselves call for legal protection. Acceptable social behavior is
closely interlinked with the notion of fairness. The 2015 ruling in the co-ownership
case may imply a renewed emphasis on acceptable social behavior on the expense
of the individualistic, right based, approach to property law: No doubt, the fellows
Knoph and Duguit would absolutely not mind.
6.5 Present Day Situation—Conclusion
During the past decade, the social function approach to property has been challenged
in Norway—not from inside, but from Europe. This is why:
In the first part of the 19th century, limited resources for the purchase of real
estate made ground lease arrangements attractive for Norwegians who wanted to
own a permanent home or a holiday home. There exist between 300,000 and 350,000
ground lease contracts, the majority of contracts being for private homes. Under these
arrangements, the lessor is the site owner and the lessee owns the buildings on the
lot. Typically, such leases concluded after a period of 60–100 years.
In 2004, the parliament adopted the rule that the lessee, when the term of lease
expired, could demand an extension of the lease on unchanged conditions, including
unchanged ground rent. This meant that homeowners and cabin owners could con-
tinue to renew the lease without ever giving the landowner a chance to renegotiate
the contract (or ground rent).
The legislation was challenged as unconstitutional, but in a 2007 ruling the
Supreme Court held it constitutional (Norsk Retstidende 2007, 1281). The reasoning
was compelling social housing considerations, as the Supreme Court held that the
140 G. Stenseth
case had to be adjudicated pursuant to Article 97 of the constitution—which pro-

hibits unreasonableness by retroactive legislation—and not according to the Takings
Clause (Article 105).
Since the legislation involved a transfer of rights to the property beyond the con-
tractual period, the court admitted that it could hardly categorize it as merely property
regulation: According to the 1918-interpretation of Article 105 transfer of property
rights would call for compensation. But the court circumvented Article 105—and
saved the legislation—by falling back on the social function approach of Ragnar
Knoph. In his 1939 book “Rettslige standarder” he had foreseen such a constitu-
tional problem, and claimed that mandatory extensions of contractual obligations
should not be categorized as expropriation, but should rather be tried against the
doctrine of retroactive legislation under Article 97. Furthermore, when it came to
the constitutionality of extending real property contracts, the legislation had to be
judged according to the social context, Knoph had (unsurprisingly) claimed, leading
the Supreme Court to cite him: to possess real property is basically a social privilege,
to which regulation from time to time is imperatively necessary (Norsk Retstidende
2007, 1281 at 91–92; cf Knoph 1939, 162).
The case was brought before the European Court of Human Rights (ECtHR),
which unanimously held that the Norwegian legislation was contrary to the property
protection clause in the European Convention of Human Rights (ECHR P1-1) (Lind-
heim and others v. Norway, applications nos. 13,221/08 and 2139/10, decision June
12, 2012). The gist of the ECtHR’s grounds is that even if the relevant provision in
the Ground Lease Act is part of a social protection of lessees and as such legitimate,
such social policy must be reviewed against a requirement that community interest
in such protection shall be in reasonable proportion to the burden owners must bear,
according to the fundamental protection of property rights that apply in Europe. In
this case, there was not a fair distribution of the social and financial burden involved
but, rather, the burden was placed solely on the property owner.
A new rule has now been adopted in Norway that, upon extension, the lessor may
demand a one-off adjustment of the annual rent, so that it corresponds to 2% of the
land value (there will still be a “ceiling” for what the ground rent may amount to per
year, set to NOK 9.000 per m2 ). This rule shall ensure the landowner a reasonable
return, measured in relation to the increase of land value.
The ECtHR ruling ended a Norwegian tradition of almost 100 years that its
national legislation and constitution at any given time exclusively define legal prop-
erty rights. And, yes, ECHR P1-1 is inspired by what Duguit would call the subjec-
tive right of the owner. Still, it is pretty far from the “principle of the inviolability
of property, understood as the absolute right to use, enjoy and dispose of a thing,”
as he fought (Duguit 1918, 78). The ECtHR applies a dynamic fair balance test
between the individual and the general interest, and states are granted a wide margin
of appreciation. In contrast, Duguit promoted a dichotomy—property is not a right,
it is a social function—an approach much like the one adopted by the Norwegian
Supreme Court in 1918. Maybe an approach like that fulfilled its function at the time,
but times change, and law has to adapt—“surrender to the force of facts,” as Duguit
put it himself (Duguit 1918, 93). These days it is more suitable to view property in
a more nuanced way, as both a right and a social function, as does the ECtHR.
Knoph, too, never went as far as endorsing Duguit’s extreme formulation. Knoph
observed that the exercise of property rights had become a social function. But that
metamorphosis did not eliminate property rights. It recreated them on a new foun-
dation that made grounds for a functional, dynamic, approach. And, in fact, let’s not
forget that Duguit himself made important modifications to his extreme formulation
of what property is:
Just as well, I really care to avoid here any misunderstanding. I do not say, I never said, I have
never written that the economic situation which is individual proprieté disappears, should
disappear. I only say that the legal notion upon which its social protection rests is changing.
In spite of this, individual proprieté remains protected against any infringement, even those
that would come from the public power. And much more, I would say that it is even more
strongly protected than with the traditional conception (Duguit [trans: Viven-Wilksch J]
(2019), 46; cf Duguit 1918, 134).
References
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Duguit L (1918) Changes of Principles in the Field of Liberty, Contract, Liability, and Property. In:
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Century, vol XI. Little, Brown and Co, Boston, p 65
Duguit L [trans: Viven-Wilksch J] (2019) Sixth Lecture—La Proprieté Fonction Sociale. In: Babie
P, Viven-Wilksch J (eds) Léon Duguit and the Social Obligation Norm of Property: A Translation
and Global Exploration. Springer, New York, p 35–61
Halvorsen M (2002) Knoph, Ragnar. In: Arntzen JG, Eggen A, Eikeland IEM et al (eds) Norsk
Biografisk Leksikon. Kunnskapsforlaget, Oslo, p 289
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for sammenlignende kulturforskning 1922–1940. Dissertation, University of Oslo
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92:1025–1039
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Oslo
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Norsk Retstidende [Rt.] 1918 p. 403
European Court of Human Rights
Applications nos. 13221/08 and 2139/10, Lindheim and others v. Norway. Decision, 12 June 2012
Chapter 7
The Social Function of Property: Russia
Katlijn Malfliet
Abstract Property ownership in Russia always has been looked upon as the key to
power. This political implication of property ownership, with its specific fusion of
public power and property ownership remains until today a basic feature of Russia’s
patrimonial regime. This paper focuses on two moments in Russian history illus-
trating that Russia hesitated/refused to deviate from a unitary, absolute concept of
property ownership, and to qualify property ownership as a social function, benefi-
cial for society. The first moment concerns the question why the Russian Bolsheviks
after the October revolution of 1917 did not rely on the communal property of the
mir or obshchina (the common property of the peasant community) to build their
Soviet Marxist-Leninist social and property structures. The second moment comes
with post-communist privatization in the nineties of the previous century. The new
class of private owners, the oligarchs, became leading figures in the boards of huge
holdings and corporate identities as Gazprom and Lukoil, as a consequence of differ-
ent forms of insider trading. From the Putin period on (2000), the oligarchs became
totally dependent from the president in a political move towards re-assertion of
state authority and re-constitution of the patrimonial state with a blurred distinction
between the public and the private.
Keywords Political implication of property ownership · Soviet Marxist-Leninist

property · Post-communist privatization · Re-constitution of the Russian
patrimonial state
7.1 Introduction
Not all goods are meant to be commodified. This idea was not only included in
Leon Duguit’s thesis on the social function of property and the need to transform
the legal notion of property ownership. Its outgoing point, that certain assets cannot
K. Malfliet (B)
Faculty of Social Sciences, Leuven Institute for International and European Studies (LINES), KU
Leuven, Parkstraat 45, 3000 Louvain, Belgium
e-mail: Katlijn.malfliet@kuleuven.be

144 K. Malfliet
be appropriated privately to be turned into an absolute subjective right for the owner
and to be commodified, but that property ownership as a legal institution is rather
than an individual right a social function, was also taken as a basic assumption by the
Soviet legal scholar A. V. Venediktov in his groundbreaking book on Socialist State
Property (Venediktov 1948). His theory on state property ownership was translated
into Soviet civil law soon afterwards, defining the state as the sole and exclusive
property owner of land and production means.1 The legal de-commodification of
land and production means in the Soviet Union, was however not combined with
an approach of property as serving the interests of “the commons” (the idea of
a collective right referring to solidarity and interdependence between individuals)
as an alternative to both the market and the state. Something else was at play in
the Soviet Union of those days: patrimonialism as a specific feature of Russian
power politics. The fusion of sovereignty and ownership, a type of government
known as “patrimonial” in medieval times, vested all titles on land in the hands
of the monarch, and allowed him to claim unlimited services from his subjects,
noble and commoner alike. In contrast to Western Europe, where the authority of
kings increasingly stopped at the boundaries of the citizens’ private property rights,
in Russia such constraint on the power of the political leader remained unknown,
was always avoided and is until today, unthinkable (Pipes 1999, 160).
This paper focuses on two moments in Russian history illustrating that Russia
hesitated/refused to deviate from a unitary, absolute concept of property ownership,
and to qualify property ownership as a social function, beneficial for society. Without
doubt, the purposiveness of property ownership has always existed in Russia and in
the Soviet Union, but this purpose found and finds its roots in patrimonialism, the
fact that state authority relies on the fusion of power and property, and on the denial
of private property rights as guarantees for individual property owners against the
state. Lenin was outright in saying: “Law is politics”. To Lenin, law including the
norms relating to property ownership, was an instrument, with which to effect social
change (Lenin 1928–1937, 212). Property relationships seemed to Soviet authors
to contain a ‘public’ quality.2 Property ownership, as conceived by Soviet Socialist
legal theory, has been looked upon as the key to power (Hazard 1953, 1). This
political implication of property ownership, with its specific fusion of public power
and property ownership remains until today a basic feature of Russia’s patrimonial
regime.
This contribution tries to elaborate on this central idea, by analyzing two moments
in Russian/Soviet historical development. The first moment concerns the question
why the Russian Bolsheviks after the October revolution of 1917 did not rely on
1 “Property ownership” refers to a bundle of property rights that a legal subject (individual or juridical
person) is entitled to exercise over a tangible or intangible asset. The notion of “property rights”
refers to the rights to use, alter and sell property and to the right to an income generated by that
property. Specific property rights determine the structure of relationships among organizations and
individuals in a system.
2 “In fact, the doctrine of socialist law also did not recognize a division of law into public and private,
because the socialist doctrine did not allow for anything private in private law, especially when it
came to property” (Pakalniskis 2004, 57).
7 The Social Function of Property: Russia 145
the communal property of the mir or obshchina (the common property of the peas-
ant community) to build their Soviet Marxist-Leninist social and property struc-
tures. Instead, the “property of the whole people”, during the Stalinist period, finally
became juridically qualified as absolute, indivisible and non-transferable “state prop-
erty ownership”. Such a form of public property ownership provided the legal basis
for patrimonial state capitalism.
The second moment comes with post-communist privatization in the nineties of
the previous century, a process during which the de facto splitting of state property,
introduced in 1948 by A. V. Venediktov (into “bare ownership” and “operative man-
agement”) was discontinued in several ways, before state property was privatized.
However, also in this case, Russia did not (legally) reset its unitary, absolute concept
of property ownership as an indivisible, exclusive right of possession, use and dis-
posal. This time public ownership was no more qualified as state property ownership
but as private property ownership. The new class of private owners, the oligarchs,
became leading figures in the boards of huge holdings and corporate identities such
as Gazprom and Lukoil. They became players on the field as the result of several
privatization techniques, which were legal, however not legitimate. In most cases,
the oligarchs followed the legislation on privatization but ended in different forms of
insider trading. From the Putin period on (2000), the oligarchs became totally depen-
dent from the president in a political move towards re-assertion of state authority and
re-constitution of the patrimonial state with a blurred distinction between the public
and the private.
In this way, the very reason for a stubborn refusal in the Russian political context
to go away from a unitary, absolute and exclusive concept of property rights, is
the patrimonial foundation of power in Russian politics, as a fundamental pattern
of cyclical continuity in Russian history. This intrinsic logic of Russia’s political
specificity includes that private property ownership as a protection against the state
clashes with a specific Russian authoritarian concept of political leadership. All
property is and was public in Russia, not because of Marxism-Leninism, but because
full ownership of the major wealth in society is the basis of power for the leader, the
reason for his autonomy and unaccountability and therefore his exclusive privilege.
Property rights in today’s Russia are still conditional and belonging to the public
sphere. The purposive function of property ownership in a patrimonial state is re-
established under president Putin, but the social function of this property is still
not answering a concept of social justice and sustainability; it mainly sustains the
political elite in its encompassing power.
This adds a special flavor to the remark of Léon Duguit: “Dominium and imperium
are incidentally two legal concepts that have the same origin and march hand in hand”.
Dominium and imperium have different connotations. Dominium, private domination,
refers to the power an owner has over his or her property. It refers to control, owner-
ship. Imperium, state domination, refers to the public power to impose rules as a ruler
or a governor of a territory. This power derives from and expresses state sovereignty.
“The whole phrase thus becomes “sovereign power” or “sovereign authority” or
simply “sovereignty”. The holder of this power is qui habet summum imperium or
summam potestatem” (Silverthorne 1996, 507). Mancur Olson draws attention to the
146 K. Malfliet
ancient Roman distinction between possession and dominium, a distinction that can
be applied not only to physical things but, also, to the ability to exercise political
rights.
Though individuals may have possessions without government, the way a dog possesses
a bone, there is no private property without government. Property is a socially protected
claim on an asset—a bundle of rights enforceable in courts backed by the coercive power of
government (Olson 1995, 458).
When dominium and imperium are fused in the person of the leader(ship) one
can refer to the political regime as “patrimonial”.
Léon Duguit equally considers property relations from an angle of power relations,
but he subjects these power relations to a communal norm, social and moral. He
brings a theory of public power, based on the principle of social solidarity, claiming
that individual or state appropriation has to be submitted to a social qualification.
The functionalization of Russian property ownership always served a well defined
public aim (during the tsarist period, the Soviet Union and post-communist Russia),
to sustain authoritarian rule of the political leadership. Private property ownership
as a guaranty against the state was always subject to distrust and skepticism because
of the continuous concern to preserve the patrimonial regime of power.
7.2 Private Property-Public Ownership and the Commons
Léon Duguit was a revolutionary thinker on private property, especially in his time of
the second half of the nineteenth beginning of the twentieth century. At that time—at
least in Western Europe—private property was coined as an absolute right, and the
basis for individual freedom in a liberal society. Duguit brought a daring interpretation
of the exclusiveness and absolute character of private property, claiming that private
property should be used by the owner according to its social function and that private
property expresses the interconnectedness of people.
The works of Léon Duguit were quite popular in the Soviet Union of the twenties,
as well as those of his predecessor Auguste Comte.3 Evgeny Pashukanis, one of the
most original legal theorists belonging to the school of the so-called “Red Professors”,
who were looking for a communist theory of law, was well informed about Duguit’s
writings about state, law and property ownership. Prof. Masha Antokolskaia for
example underscores this particular feature of early Soviet legal scholarship. She
was until 1998 professor at the State Academy for Law in Moscow, and afterwards
became senior researcher at the Molengraaf Instituut voor Privaatrecht at Utrecht
University in the Netherlands. The works of Léon Duguit were a welcome source
for Soviet legal theorists, endowed with the mission to develop Soviet Socialist legal
thinking (Antokolskaia 2002, 137–152).
3 EvgenyPashukanis for example discusses the works of Duguit in: Pashukanis 1925–1926,
1064–1068. See also: Beirne and Sharlet 1980, 166–168.
However, Duguit clearly delimits the boundaries of his revolutionary ideas: “we
do not talk about collective property”. Although he sees property as a legal institution
transforming itself in a socialist sense, he sticks to the idea of private property, and
the purposive nature of that kind of property.
…consequently property as a legal institution must also transform itself. The evolution here
is happening in a socialist sense…Therefore property is socializing itself, if I can say so. This
does not mean that it becomes collective in the sense of collectivist literature; but it means
two things: firstly that individual property ceases to be a right of an individual to become a
social function and secondly that the cases of allocation of wealth to communities, which
must be legally protected, increase (Reference to the translation of the sixth lecture by Leon
Duguit).
Probably Duguit’s cautiousness against collectivism is the reason why the works
on Soviet property law appearing during the Stalinist period, including Venediktov’s
Socialist State Property, do not rely on Duguit’s theory about the social function
of property. Sticking to private property, that has to socialize itself, was not the
choice that was made during the Stalinist regime and afterwards. Private property
was declared to be incompatible with a Soviet theory on property law. Here the Soviets
kept to the Marxist-Leninist ideas, as expressed in the Communist manifesto: “All
private property has to be abolished” (Communist Party 1848, Chap. 2).
Remarkably, the subsequent social doctrines of the Catholic Church were also
reluctant in taking too much distance from the idea of private property ownership.
Pope Leo XIII promulgated the first social encyclical “Rerum Novarum” in 1891.
This encyclical examines the conditions of salaried workers in that era. It lists errors
that gave rise to social ills, but it excludes socialism as a remedy and expounds with
precision and in contemporary terms “the Catholic doctrine on work, the right to
property, the principle of collaboration instead of class struggle as the fundamental
means for social change, the rights of the weak, the dignity of the poor and the obli-
gations of the rich, the perfecting of justice through charity, and the right to form
professional associations” (Pontifical Council for Justice and Peace 2004, 287–300).
The encyclical “Quadragesimo anno” (1931) commemorates the fortieth anniversary
of “Rerum Novarum”. This encyclical rejects liberalism understood as unlimited
competition between economic forces and reconfirms the value of private property
recalling its social functions. With the encyclical letter “Divini Redemptoris” (1937)
on atheistic communism and the Christian social doctrine, Pope Pius XI offered a
systematic criticism on communism, describing it as “intrinsically perverse”. Hun-
dred years after “Rerum Novarum” came “Centesimus Annus” (1991), which deals
with the great breakthrough of 1989 and the collapse of the Soviet system. Centes-
imus Annus shows appreciation for liberal democracy and the free economy in the
context of indispensable solidarity. Private property ownership as the key concept
for a capitalist organization of society was not criticized as such, on the contrary, it
was confirmed in its role in regaining freedom in post-communist societies.
Without any doubt, although the concept of private property ownership was chal-
lenged and discussed all over the world, Russia lived through a more revolutionary
past where it concerns the fate of private property, especially in the period of the
148 K. Malfliet
beginning of the twentieth century. When the Bolsheviks in 1917, to their own sur-
prise, were confronted with an opportunity to take over power, they did not hesitate to
refer to the Communist Manifesto, claiming that all private property and inheritance
law simply had to be abolished. The first revolutionary decrees spoke in this sense
(Gsovski 1948, vol. 1, 909; vol. 2, 907).
Afterwards, the Soviets went in search for a theory of property rights, that would
fit into the Marxist-Leninist ideology but at the same time would be suitable to sustain
the (troubled) economy. When the choice was made for state property ownership,
ideologically defined as the property of the whole people, but legally coined as an
absolute and exclusive property ownership, the question became how to operational-
ize such type of state property in the Soviet economy. In this sense, state property
had to serve a public aim.
However, this paper states that Russia, during the seventy years of its Soviet
period, but also before during tsarism and afterwards, in the post-communist period,
never brought in the collective (the commons). Now that in the new post-communist
Russia Marxism-Leninism is rejected and liberal capitalism became the new norm,
the functionalization of private property again became crucial for the regime of new
authoritarianism. So there is indeed in post-communist Russia a shift from prop-
erty ownership as a “droit subjectif” to “propriété-fonction”. But it is questionable
whether the new private property serves the needs of society as a whole. Public
ownership is not by definition serving the interests of the collective.
The distinction between the public and the private sphere remains fundamental,
now that Russians may have become citizens, but the public aspects of citizenship
are still far from being fulfilled (the degree to which liberalism can sustain an active
public sphere). The French Déclaration des droits de l’homme et du citoyen of 26
August 1789 saw property, linked to freedom as a natural right, as “inviolable et
sacré”. But this right refers to the capacity to become an owner, the aptitude to
become owner, the power to attribute. This right, justified by human nature, gave the
citizen the instruments to oppose to the state. Such a “danger” is considered to be
avoided in Russian power politics and in a regime of patrimonial autocracy. Such
a power regime does not accept resistance from a middle class of property owning
gentry.
Duty and obligation, as related to power, are fundamental for a functional theory of
property rights. Léon Duguit underscored this important aspect of property: “Property
implies for every holder of wealth, the duty, the obligation in an objective manner, to
use the wealth he possesses to maintain and increase his social interdependence”. And
further on: “Dominium of the individual-imperium of the government as the holder
of force—has the duty and therefore the power to use his thing to the satisfaction of
collective needs”. Russian legal scientists like to refer in this context to Lev Tolstoi,
the Early Christians and the specific way of Russia, but certainly not to positive law:
“All the time we strive towards absolute justice, not understanding that in this world
nothing is absolute, even the truth” (Konyshev 1991, 5).
The duty and power to use private property to the satisfaction of collective needs is
not the same as what is meant by the notion of “The Commons”. Since the landmark
book Governing the Commons by Nobel Prize winner Elinor Oström, ‘commons’
have come to represent an alternative to both the market and the State (Oström 1990,
1–28). Social activists all across the world now use this term to say that the world
is not for sale, that not all goods are meant to be commodified, and that some areas
of social life should remain governed as commons—that is by the communities
themselves, in an autonomous and collective fashion.
In part VI of his lecture Léon Duguit seems to direct his mind to the concept
of the commons, when he refers to the fact that “the holder of wealth has the duty
and therefore the power to use the asset to the satisfaction of community needs.
This proposition leads to the recognition of the autonomy of any collective estate
constituted by individuals, or, to recognise the liberty of association and the liberty of
foundation. We then set aside every subtle and baseless controversy on community
personhood”.
Let us now turn to the Russian experiment with property ownership, and see which
lessons we can draw from this unique experience with the public implementation of
the social function of property.
7.3 Revolutionary Communism (1917–1921): The Choice

for the Proletarians
Russia was not exactly the ideal country to experiment with Marxism. When Marx
and Engels talked about their revolutionary theory of abolishing private property,
they meant to apply this to a highly industrialized society, not an agrarian one, as
Russia was in those times, when industrialization just had started. At the end of
the tsarist period, Russia’s population counted more than 80% peasants and 20%
aristocrats. Serfdom was abolished rather late in 1864 by Alexander II (Davies 1998,
66).
In early Soviet law, the right of property ownership became regulated only after
the enactment of the Civil Code of 1922 (see further). Prior to that, during the period
of so-called Militant Communism (1917–1921), the Soviet legislation dealing with
ownership was represented by a series of confiscatory decrees, which sought to dis-
solve the existing property rights. The Soviet government tried to enforce a rigid
communist social order by radical measures erasing the hitherto existing institu-
tions. The first revolutionary decrees “On Land” (abolition of all private ownership
of land)4 (RSFSR Laws 1917–18, 3 and 346) and “On the Abolishment of Inheri-
tance”5 (RSFSR Laws 1917–18, 456), radically did away with private property and
confiscated the assets, movables and immovable of the Russian aristocrats. The Bol-
sheviks proceeded to the nationalization of banks, enterprises, farms. Stocks and
bonds were “annulled” and savings practically confiscated. Copyrights and patents
were subjected to a government monopoly. Banking, insurance, business and foreign
4 Decree “On Land” of November 8 1917, definitely declared on February 19, 1918, RSFSR Laws
od 1917–1918, texts 3 and 346.
5 Decree “On the Abolishment of Inheritance” of April 27, 1918, Ibid. text 456.
150 K. Malfliet
trade were declared government monopolies, and all establishments engaged in such
activities were confiscated without indemnity. The management of the nationalized
businesses was highly centralized in the hands of the bureaus of the Supreme Eco-
nomic Council, charged with the individual branches of business, the so—called
“Glavki” (from Russian Glavnyi Komitet—Main Bureau or Chief Board).
Numerous decrees sought to introduce socialism in agriculture. At first, schemes
of theorists of agrarian socialism were written into elaborate laws, aiming at the equal
distribution of agricultural land of Russia among those who would till it by their own
labor. Private ownership of agricultural land was abolished and “personal labor” was
declared to be “the fundamental source of the right to use the land”.6 Later on, the
Soviet decrees more expressly pronounced the governmental ownership of the land
(nationalization of land) and sought to place the land at the disposal of government
agencies for the purpose of organizing collective farms of land tenure: government
farms (sovkhozy) and “agricultural communes”. But, in fact, the decrees concerning
land tenure issued during this period reflected more the program of the government
than what was actually happening on the countryside. The great agrarian revolution
went on, the big and small landowners were dispossessed, and land was redistributed
by peasants regardless of the Soviet decrees and their aims. The old-fashioned village
commune (mir or obshchina) such as it existed under the imperial regime prevailed”
(Gsovski 1948, vol 1, 15). The possession of land remained unsettled; the disputes
and redistribution of land between and within the villages went on and on.
Proletarians and peasants were supposed to take over during militant communism
(1917–1921), but in this sense that peasants would bring their production to the
cities, in order to feed the proletarian workers in the cities. The attempts of the
Soviet government to rigidly enforce the government monopoly of crops resulted
in sharp conflicts with the peasantry. All private trade in foodstuffs was forbidden.
All surpluses above the consumption need of the farmer, set by the government at
an extremely low level, were to be delivered to the government at fixed prices equal
to confiscation (prodrazverstka). All the prerevolutionary judicial institutions were
dissolved en bloc on December 7 (November 24, old style calender) 1917, and the
new people’s courts were under constant reorganization. Thus even if private rights
were in reality not completely annihilated from the beginning, there was hardly any
apparatus for their protection. The institution of property rights itself was abrogated.
Ideologically property was the key concept of Marxism-Leninism as expressed in
the Communist Manifesto: “In diesem Sinne können die Kommunisten ihre theorie
in einen Ausdruck “Aufhebung des Privateigentums” zusammenfassen” (Marx and
Engels 1960, 418).
The Soviet regime, however, did experience a problem in setting up a new property
structure. It soon became clear that society was not prepared for such a radical
denial of private property and forced collectivization of property. The peasants were
still organized in their mir-collectivities. Soon it became impossible to administer
all heritages that were devolving to the state (as inheritance law was abolished).
6 Decree of February 19, 1918, RSFSR Laws 1917–18, tekst 346, sections 12, 13.
The expectation that the farmers would feed the proletarians in the cities, was not
becoming true, there was hunger and civil war.
Already in 1921 Lenin decides to leave—temporarily—this collectivist idea, and
to re-introduce the legal institution of private property, be it for a limited period of
time, as a strategic move with the aim to offer some oxygen to a completely disor-
dered society. The New Economic Policy (N.E.P.) implied a temporary reconnection
to private initiative in business and agriculture, to private property, and, in this way, to
private rights. Lenin considered this move as a “strategic retirement” of his commu-
nist policy, and thus he did not see the need to create original (socialist) legislation
for this transitory period. There were plenty of good—up to date—civil codes in
Europe, such as the German or the Austrian. In this way A. Goikhbarg succeeded
in preparing the new Civil Code for the Russian Federation in three months time.
The concept of private property, as cited by Duguit and as formulated in Article 544
of the Napoleontic Code, was prominently there. It would never leave the Soviet
legal thinking on property ownership any more. Article 58 of the 1922 RSFSR Civil
Code adopted the conventional language of continental civil law codes—to say that
“within the limits set by law, the owner has the right to possess, use, and dispose of
his property”.
The period of New Economic Policy, sustained by this new Civil Code of 1922,
allowed farmers and entrepreneurs—contrary to the Marxist doctrine—to hire people
for their agrarian or industrial enterprise. But when Lenin died, he was—against his
will—succeeded by Stalin, who soon made an end to the New Economic Policy, and
started with the first five year plans, meant to radically further collectivization. The
question was exactly what form(s) that collectivization would take.
It turned out to be terror, people were forced to work on collective farms. Kulaks
and NEP-men, officially considered as useful private entrepreneurs and farmers dur-
ing the NEP-period, were now condemned as “enemies of the people”. The guarantees
of civil and criminal law were declared not to be applicable to that class of people.
Special courts confiscated their property and condemned them to summary execution
or deportation.
7.4 The Russian Mir, Obshchina or Agrarian Community
Before the October revolution of 1917, under Alexander II, ownership reforms were
organized from above through the emancipation of the serfs (1864), reforms of the
zemstvo system (self-governing regional governments) and the judicial reforms of
1864 (Johnson 1969, 1–17). The land, formerly worked by the serfs was transferred to
the mir, the local communal organization of the peasants, and the mir distributed this
land at intervals to the various households of the community. These reforms, however,
did not avoid social unrest. Peasant upheavals were followed by confiscation of land
owned by rich land-owners. After the revolution of 1905, under the influence of
Stolypin, an edict of 9 (22) November was enacted, declaring the abolition of the
mir and the creation of individual private land ownership (Wieth-Knudsen 1913,
152 K. Malfliet
260). But the peasants preferred the common property of the mir. The mir survived
(Stoyanovitch 1962, 90–91).
The Russian agrarian local community (obshchina or mir), one of the most remark-
able institutions of Russian history, knew a sophisticated format of collective user
rights and collective responsibility for the agrarian population of European Russia
before the October revolution.7 The mir was organized around distributive principles
and mutual help. This in-built solidarity and collectivism was the result of traditional
ideals but also of bitter necessity to survive. It remains a question why the mir did
not become the social core for the transition to communism in Russia. Personally, I
always asked myself why the Communist Party never considered to include the mir
as a social structure during the transition to communism.
The mir was a self-organized community of peasant households, that governed the
lands, which were periodically re-distributed, according to the composition and the
extent of the peasant households. This particular form of governance was also marked
by a special design of collective responsibility. The Russian peasant was convinced
that it was fundamentally wrong to have land in private, hereditary property. If land
turned into a form of capital, a source of gain, power and prestige, this was sinful in
the eyes of the peasants, a testimony of unchristian greed. It was according to them
against morality and piety to attribute too little land to the peasants, so that they could
not answer the needs of their family. Hoarding of money or goods for oneself was
antisocial and perverse. In this sense, one could say, the Russian peasant was a born
communist, or at least a born equalizer. Under the conditions of volia (Gods will)
all would be equal and provided of a good social setting, featured by sharing. In this
sense the mir would fill in God’s will for a real moral human condition.
The communal possession of land existed already before the introduction of serf-
dom, survived the emancipation of the serfs in 1861 and even the Russian revolution
of 1917. In prerevolutionary Russia the peasants formed a special group, which rep-
resented three quarts of the population. Peasants were not subject to the common law,
but lived according to the local customary law, that developed in the course of time.
Only when serfdom was abolished, the mir was taken away from the patrimonial
jurisdiction of the landlords. From then on the mir became a self-governing com-
munity. The institutional power of the obshina was situated in the schod, gathering
on regular basis to regulate the redivision of land, to look at local disputes, collect
taxes, collect recrutes for the army and even solve personal or family disputes. The
mir also took on a collective, shared responsibility for paying debts and for causing
harm to third parties (krugovaia poruka).
The mir was thus a very particular institution, which according to certain political
and ideological tendencies in nineteenth century Russia could lead to the salvation
7 Obshchina and mir were traditionally translated by historians as “redistributing agrarian commu-
nity”. This changed after the publication of a provocative essay by S. A. Grant (1976, 636–651),
who, as before him the Russian historian Kliuchevski, argued that obshchina was a neologism,
introduced by A. S. Khomiakov and I. V. Kireevski. Contrary to the threefold connotation of “mir”
(rural community, peace, world), obshchina was more unambiguous: it meant “rural community”.
The peasants, on the contrary, used the old and for them more significant term of mir, when they
referred to the peasant community and the sharing of the land use (Atkinson 1983, 5).
of Russia and the future of communism. The Slavophiles, as romantic nationalists

glorified the mir as Russian, collective, old and honourful, not contaminated by
the bourgeois attitude that “sickened” the West. Aleksej Chomiakov (1804–1860),
founder of Slavophilia, in his “Concept on the Philosophy of the Obshchina”, under-
scored the community feeling of Russian people and the symphonic unity, what he
called sobornost ‘(the spiritual community of people living together). This concept
of sobornost’ also points at the particularities of the Russian Orthodox culture and
Eastern Orthodox values, as opposed to the “cultus of individualism” of the West. The
so-called populists as Alexander Herzen and Nikolai Bakunin saw the mir as the pro-
tector of Slavic virtues against the ravages of Western materialism and scienticism.
The Westernizers or Zapadniki were not so enthusiastic about the mir, which they
saw as a creation by the monarchy to collect taxes. The Russian social democrats,
who belonged to the group of the Westernizers, even saw the mir as a hindrance
for further development of Russia. Development meant in the first place industrial-
ization and capitalization, and they saw capitalization of agriculture in immediate
connection with the destruction of the mir as community structure. Lenin, who was
a member of the Social-Democratic Party, before it split up in the Bolsheviks and
the Mensheviks, predicted that the mir would disappear before industrialization and
capitalization set on (Levine 1973–1974, 87–104).
The question, discussed among political thinkers and activists in those turbulent
times of the end of the nineteenth, beginning of the twentieth century, was whether
the mir had to disappear, in order to come to industrialization and capitalization
according to the laws of dialectic materialism. If communism could develop from
the Russian mir, because the mir contained enough community spirit to realize com-
munism, then Russian development towards communism could effectively differ
from Western Europe. In that case the peasants, rather than the proletariat, would
have been in charge when building the communist society. Dialectic materialism in
its development concept, in that case, would not be unilinear but multilinear.
Karl Marx, especially towards the end of his life, indeed believed that the mir
could be considered as a transitory structure towards communism (Marx 2014, 28).
The originality of the Russian way could be, according to him, that the Russian
social revolution could keep the mir as a societal structure and in this way would
be able to escape from the negative implications of capitalism. Because communist
conscience was already included in the mir, the mir did not have to be destroyed and
Russia did not need to become fully industrialised and capitalized, before turning
itself to communism. In this sense Marx corresponded with Vera Zasulich (letter to
Vera Zasulich of March 8, 1881) (White 1996, 273). In his foreword to the second
Russian edition of the Communist Manifesto in 1882, Marx is very explicit about
the possibility that the Russian agrarian community could offer a potentially eman-
cipatory structure, in certain revolutionary situations and could serve as a starting
point for a communist societal development. The obshchina would save values of
solidarity and social boundness, and also avoid that the tradition of common use
of land would disappear. There was, however, no consensus about this issue (Wada
1983, 40–75). During the first Socialist International, held between 1867 and 1869
the debate on property to land was of an unseen intensity: the collectivists (collective
154 K. Malfliet
property is a necessity) stood against the Proudhonists (who defended small farms
and rejected each form of collectivization) (Kimball 1973, 491). Besides the Ger-
man August Bebel and Wilhelm Liebknecht, both member of the Social Democratic
Labor party, also the Russian anarchist Michail Bakunin wrote down his ideas on
socialist (agrarian) property (Freymond 1975, vol. 1, 361–379, vol. 1, 405–406).
The European socialists saw the mir as a proof that Russian peasants had kept a
tradition of socialization of the land and that they were not subject to the “bourgeois
impulses to collect property”. While all over Europe socialist doctrines were formu-
lated, and adapted to the national needs, the Russian revolutionary-socialist programs
were confronted with a rural environment and a predominantly rural population. The
majority of them preferred to look forward to a European socialist future, rather than
to look back to an agrarian community model of their ancesters. The social function
of property would develop in Soviet Russia along a different path.
7.5 Soviet Socialist State Property
As in many fields of Soviet law, the Stalinist period brought a radical restoration
of property ownership, away from the radical ideas of revolutionary socialism. Not
that private property was restored as a regime-specific form of property ownership.
On the contrary, at the end of the NEP-period private property owners (“Kulaks and
NEP-men”) were condemned as enemies of the people. But property ownership as
an exclusive and absolute right was re-instored as a general concept. The social func-
tion of property ownership, however, would be operationalized and guaranteed by
allocating certain categories of goods to well defined subjects of property ownership.
Crucial to the building of the Stalinist concept of Socialist State Property was
the work of A. V. Venediktov: Sotsialisticheskaia gosudarstvennaia sobstvennost’,
published in 1948 (Venediktov 1948, 840). In this work, Venediktov starts from
the Marxist-Leninist idea that private property risks to induce social inequality and
capitalist exploitation. In order to do away with exploitation of people by people,
specific goods should be attributed to certain subjects: property ownership became a
question of allocation of goods. In this sense, Venediktov took the way, Léon Duguit
did not want to walk on. But Venediktov did not make the choice for collective
goods, goods that belong to the community. State property was juridically coined as
exclusive property of the state, be it ideologically legitimized as “the property of the
whole people”.
We have to point at the internal consistency of the Soviet system of property rights.
State property—legally defined as an indivisible, exclusive and absolute right—
found its legitimation in the reasoning that the state represented the whole people as
a collective owner of state property. In this sense, state property was in its content
functional and social (collective), and exactly this content legitimized the exclusive
attribution of this property to the state as the sole owner. The reasoning was that state
property served the implementation of the plan and in this way—indirectly—the
needs of the population. Venediktov’s ideas were introduced in civil and criminal
legislation afterwards, for example in the 1964 RSFSR Civil Code.8 This system of
property rights existed until perestroika, which made an end to the Marxist-Leninist
regime of property ownership.
Léon Duguit was clearly convinced of the need to consider property as related
to distinguished categories of goods-he speaks of “types of property”. “In this study
I will consider exclusively what economists call capitalist property, leaving aside
the property of consumables which present completely different characteristics, and
which cannot be said to evolve in a socialist sense. But on the other hand I will talk
of all capitalist property, movable property as well as immovable property”.
Venediktov equally distinguished sorts of property. The division of possible sub-
jects and objects of differentiated ownership forms was typical for the Soviet institu-
tion of property rights. The Soviet regime of property rights actually contained four
different types of property ownership: socialist state property, cooperative property,
social property and personal property. All major wealth of the country: land, enter-
prises, stocks, banks was exclusively attributed to the state. The state was the sole
owner able to appropriate those goods. If someone else than the state did appropriate
these assets, this was considered by criminal law as “theft of state property”. During
Stalinist times, judges were applying this idea of theft of state property in a very
strict way. Well-known is the case of poor people, assembling some grain helms on
the acre, after the harvest was done by machines. They were condemned to the heavy
punishments on “theft of state property” (Gsovski 1948, 1 vol 1 314).
Besides state property, cooperative property was seen as a transitory form of
socialist property (towards socialist state property), in order to get farmers included
into the collective system. Kolkhozes (cooperative farms) were conceived according
to that principle, and so did fishermen’s cooperations.
The third category of socialist property was “social property”, which afterwards
appeared to consist of the property of the Communist Party and of the Communist
Trade Unions. This special category never became clear, it was probably also meant
to remain non-transparent.
Private property (chastnaia sobstvennost’) was abolished as a legal category and
replaced by personal property (lichnaia sobstvennost’), the only available form of
individual property, considered as socially less important and as “derived from social-
ist property”. Personal property related to consumables, a category that Léon Duguit
leaves aside. But also a house, a datcha (summer house), a few pieces of cattle, were
allowed to belong to the personal property of individuals as long as they served the
social purpose of meeting the needs of individual use. In cases, where this prop-
erty was used to gain rent or to exploit other people (by renting out a house, over-
exploitation of the land, or even setting up a craftmen’s industry), the income of this
forbidden activity was confiscated by the state as netrudovye dokhody: “unearned
income”. Commercial activity by a private individual or legal person—or even an
attempt to do so with the aim of gaining an income out of this—fell under the criminal
act of “speculation” (Article 154, 1960 RSFSR Criminal Code). Personal property
8 RussianSoviet Federative Socialist Republic (RSFSR), the largest of the 15 Union Republics of
the Union of Soviet Socialist Republics (USSR).
156 K. Malfliet
was introduced by the 1936 USSR Constitution as fundamentally different from pri-
vate property. This kind of property ownership was thus highly functionalized by its
aim (personal consumption and use only) and by its source (labor income only).
Citizens under this property ownership regime were not only deprived of the
capacity to own enterprises and other production means. Moreover, civil legislation,
under real socialism, imposed an interpretation of the law strictly according to the
social economic purpose of the rights conferred. Article 1 of the RSFSR Civil Code
of 1922, Article 5 of the Principles of Civil Legislation of 1961 and Article 5 of
the RSFSR Civil Code of 1964 stated that “civil rights are protected by the law
except in cases where they are implemented against the meaning of these rights in a
socialist society during the period of building of communism” (Andreev 1993, 40).
This article took the social function of civil rights to unprecedented proportions.
Although the explicit references by law implementing organs to Article 1 and later
5 were very few, the spirit of a specific interpretation of abuse (zloupotreblenie) of
rights by the individual in a communist framework was omnipresent (Malein 1991,
31). The whole concept of personal property and the praetorian implications of
the notion “unearned income” (netrudovye dokhody) were related to this functional
interpretation of property rights. During the Soviet totalitarian regime, however, state
power and civil servants were the first to abuse their power: they enacted normative
and individual acts officially to avoid abuse of rights by the citizens, but in fact to limit
their rights and freedoms. It is clear as well that, during the communist period, there
was an enormous abuse of state property. This kind of abuse became frequently cited
by legal scientists: “At the time of the monopoly of state property the plus value was
not in the hands of the direct producers, but the party and state apparatus disposed
of it without control and in an undivided way for interests that were often far from
the interests of society as a collective owner” (Tolstoi 1990, 6–7).
Two categories of objects of property rights were, in particular, relevant during
the Soviet period: res intra and extra commercium and production goods and con-
sumer goods. The difference between movable and immovable goods had become
irrelevant. All land had been nationalized, had become state property, and was gov-
erned by land law (zemel’noe pravo). Enterprises and other production means were
operationalized as state property by legal persons sui generis (state enterprises, insti-
tutions), authorized by the state. However, enterprises were not the owners of the
property they worked with. The idea of res nullius was unknown, ungoverned prop-
erty became state property.
When Léon Duguit talks about allocation, he means allocation not of certain
categories of goods to certain subjects, but to individual or community goals.
To which economic need, in a general manner, does the legal institution of property provide
an answer? It is very simple and appears in any society: it is the need to allocate some wealth
to defined individual and community goals, and as a result the need to guarantee and to
protect socially this allocation.
Remarkably, Venediktov, although he rejected the notion of private property,

finally did not propose to change the very concept of ownership (dominium). In
his book “The Legal Nature of State Enterprises” (1928), Venediktov argued that
an autonomous state enterprise (which was called trest at that period of time), as a
legal person recognized in civil law, had the capacity effectively to own the property
that was allocated to her by the central Soviet government. But that interpretation
became no longer sustainable under Stalinist autocracy, as Murray Raff and Anna
Taitslin rightly underscore: “However, by 1938 the doctrine of unitary state own-
ership was well established as Soviet legal orthodoxy owing to Articles 4–6 of the
Stalin Constitution of 1936. In his speech made before the Soviet legal academics in
July 1938 Vyshinskii raised a question about “the legal nature of state ownership
and the related question of the Soviet legal person and the property assigned to it,
and its own turnover assets etc.” stressing “the unity and inviolability of state own-
ership” and conceding to “legal persons” the right of disposal-management of the
state property by means of mandate/proxy (po porucheniiu) only” (Raff and Taitslin
2016, 320–321).
Venediktov did accept the civil law concept of property ownership as an inviolable
and sacred right as it was formulated in Article 17 of the Declaration of Rights of
1789 and in Articles 544 and 545 of the Napoléontic Code: “Ownership is the right
to enjoy and dispose of things in the most absolute manner”. From the footnotes
in his book on Socialist State Property, however, one can derive that rather than
by Duguit’s theory of the social function of property, Venediktov was inspired by
the property theory of the German Pandectists, whose books were used by Russian
lawyers before the revolution and, after the October Revolution, were left in the
cellars of the scientific libraries in Russia, as almost the only available sources for
Soviet legal theory, where it concerned property ownership. The irony was that the
theories of the Pandectists were conceived to build a capitalist theory of property in
the nineteenth century. To see ownership in its civil law conception as absolute and
exclusive was the demonstration by excellence of the autonomy of the human will,
of the sovereignty of the individual in the same manner that legislative power is the
demonstration by excellence of state sovereignty.
In this sense, Venediktov was confronted with all the consequences of the civil
law format of property ownership, and with the same question as Léon Duguit asked
himself:
“If property is seen as a social institution, how did codes based on the individualistic and civil
principle organize it? The civil codes had in focus the allocation of wealth to an individual
aim, profoundly individualistic as they were, the complement and even the very condition
of liberty, of individual autonomy. …They (the civil codes of that time) believed that the
only means to protect this individual allocation was to give the possessor of the good a
subjective absolute right, absolute in its duration, absolute in its effects; a right that would
have as its object the possessed good and for its passive subject every individual other than
the possessor himself. In one word, they adopted the strong legal construction of the Roman
dominium”. And also Léon Duguit warned: “Of course the owner, having the right to use,
enjoy and dispose, of the asset, cannot have the right not to use it, not to enjoy it, not to
dispose”. This was a fortiori the case for Soviet State Property.
The concept of socialist state property was indeed a non-practical one, because
it was too static: state property needed to be operationalized because it concerned
the major assets of industry and agriculture. But, and in this he was indeed orig-
inal, Venediktov created and introduced a new concept: “operative management”
158 K. Malfliet
(operativnoe upravlenie), a sui generis right in rem. The right of operative manage-
ment conferred to the state enterprises the rights of possession, use and disposal of
the property that was entrusted to them, with the aim of organizing their activity in
accordance with the plan tasks (Article 94 of the 1964 Civil Code). It contained all
classical powers of ownership (the right of possession, use and disposal), without
being a right of property ownership (as the sole owner was the state). In this way
enterprises and state farms were able to work (produce, sale, buy) even if they were
not the property owners of the assets.
This reasonably consistent system of property law, based on the idea that produc-
tion was the responsibility of the state, simultaneously supplied one of the principal
components of Soviet totalitarianism (Feldbrugge 1993, 229). This state property
ownership was dominium as well as imperium (Lee 2012, 79). State property was
functional ownership, in that it guaranteed the control by the elite over the political
regime. The plan provided for the social function of the assets, but the first interest
was the control over the major wealth of society. The rules of control were not clearly
laid out, which left room for discretion from the part of various administrative bod-
ies involved in the management of the economy at various levels. The problem of
accountability and control was aggravated by the fact that the government hierarchy
was intertwined with the Communist party hierarchy, which also meddled in the con-
trol of state-owned companies. The public function of socialist state property was to
sustain the Politburo in its power, in the same way as land ownership was important
for the tsar, to keep his authority going and in the same way as currently oil, gas and
other important natural resources sustain the Russian power regime under President
Putin.
7.6 The Patrimonial Features of Power
Soviet state property de facto led to an extremely privileged position for those who
governed the political system, as the Communist Party elite obtained an almost unlim-
ited power over national wealth without being attributed a legally defined ownership
to this wealth. The patrimonial elements in the definition of public power (i.e. the
fusion of dominium and imperium) are characteristic for Russian politics. Together
with Richard Pipes (1999, 159), the Swedish historian Stephan Hedlund argues that
the roots of patrimonialism reach back into the Tsarist era. This patrimonialism is
fundamentally related to what he sees as part of “The Muscovite matrix”, as an
institutional matrix that the Muscovites developed to solve their security problems.
Importing the Byzantine notion of ‘autocracy’ in subsequent Muscovite development this
order of things (that one grand princely family would serve as the primus inter pares) would
come to be known as samoderzhavie, or self-rule. As in many other cases of institutional
borrowing, or imitation, the transfer of this concept was associated with some distortion in
meaning. While autocracy in Constantinople had implied that the Byzantine Emperor would
recognize no foreign constraints on his exercise of power, in Moscow it came to mean that
the Grand Prince would recognize no constraint whatsoever, foreign or domestic. Of all
threads that normally go into weaving a continuity theory of Russian history, this principle
of unaccountability surely must be the most prominent and the most durable (Hedlund 2006,
781).
Unaccountable government asked for the suppression of individual rights to pri-

vate property. The autocrat was in need of the capacity to mobilize resources at
will in times of security threats, without being necessitated to enter into negotia-
tions with recalcitrant nobles. More importantly even, if unity of command had to
be maintained, the boyars could not be allowed to possess estates of their own, on
the basis of which they could independently challenge commands from the Grand
Prince. And so came that the similarly traditional right to inherit estates (votchina)
was transformed into a system of conditional tenure (pomestie). The resulting fusion
of power and property in the hands of the ruler, according to Stefan Hedlund, con-
stitutes the most distinctive of all dimensions of Russian specificity. It also forms
the hard core of what Pipes, following Weber, refers to as the ‘patrimonial’ regime
of old Russia. The model had no institutional means by which subjects could even
hope to have their rights to property enforced against the will of the ruler. For this
reason, it makes little sense to speak of an enforceable economic or legal institution
of property rights.
7.7 Perestroika and Patrimonialism
With perestroika, the ideology of Marxism-Leninism fainted away. Private prop-

erty became qualified as the most important form of property ownership. The first
impression of this new era was that of a Copernican revolution, an Umwertung aller
Werte. A shift in the ownership regime and in the attribution of property rights is,
as a rule, related to changes in the purposes which society and the dominant classes
in society expect the institution to serve (Macpherson 1978, 1). The historian Fustel
de Coulanges argued in his well-known work, La Cité Antique, that societies can
always be situated between two revolutions: one which deprives the rich of their
wealth and one which brings them again in the possession of that wealth (Coulanges
1988, 444).9 Exactly these dramatic changes have occurred in Russia between 1917,
when the rich were deprived of their wealth, and 1990, when a process of privatization
was initiated, with the oligarchs enriching themselves as insider-dealers.
Something, however, went wrong with privatization in the Russian post-
communist context. It lacked elaborated theoretical assumptions and normative argu-
ments addressing the questions of who is to carry out which actions under which
circumstances and with what aims, which dilemmas were to be expected along the
road and what meaning should be assigned to the notion of progress. Where it con-
cerns privatization, it was not individual property of movables and immovables that
caused the radical change, but the assets of big holdings, which became the capi-
9 The original edition—La cite antique—is written in French and dates from 1864.
160 K. Malfliet
talist ownership of the post-communist wealth: energy, oil, gas, and other natural
resources.
And at this very point the fundamental questions about property ownership came
back as political issues: who will own the most important assets in the country?
What kind of property ownership will it be? Concepts like “privatization” and “pri-
vate property” have a deliberately opaque semantic content. The aim of privatiza-
tion is to come to a market economy, based on private property. Private property,
in turn, is linked to personal freedom. Privatization in general terms implies (in a
post-communist context) the transformation of socialist state property into private
property. At first glance, this transformation is the result of the need for economic
efficiency: new owners have to be found, better and more efficient ones. The crisis of
real socialism forces towards a rethinking of socialist ownership and its obezlichennyi
(“faceless”) character. Privatization means not merely a redistribution of ownership
rights among existing economic agents. Privatization in post-communist societies
implies a major shift in property rights within a politico-legal system that was based
heavily on strictly defined property rights and functional ownership concepts in a
Soviet socialist context. In a post-communist situation, transfer of property rights in
this sense also implies a redefinition of the social function of property rights (Jasinski
1992, 163). When a society changes its institutions of property, it has to decide which
(in)equality it aims at.
The new Russian Civil Code of 1994 returns to the legal institution of private
property ownership. Private property is recognized as the basic form of ownership
for citizens and legal persons. Article 212 recognizes private property alongside state
property, municipal property and “other forms of property ownership”(Konyshev
1991, 5). But Article 213 hesitates to repeat the concept of private property (chastnaia
sobstvennost’) and prefers to refer to the property ownership of citizens and legal
persons (pravo sobstvennosti grazhdan I iuridicheskikh lits). Nevertheless, there is
no doubt that the basic paradigms on property rights were changed in a drastic way
by the new Civil Code. Property rights and other rights in rem should no longer serve
the requirements of a plan-organized economy but, rather, should induce flexibility in
a market-organized society. Article 209 (content of the right of ownership) contains
the classical definition of property ownership as an absolute right in rem, as the
right of possession, use, and disposal of assets (imushchestvo) which belong to the
owner. The owner can transfer property into the ownership of other persons, keep
the ownership title and transfer the rights of possession, use and disposal, hand over
property as a pledge or otherwise encumber it, or dispose of it in other ways. The
owner has the right at her/his discretion (po svoemu usmotreniiu) to perform with
his/her property any activities which are not contrary to legislation and do not violate
the rights and interests of other persons, protected by law [Article 197 (2)].
In this way, Russia appears to evolve towards a liberal theory of property rights,
looking at property ownership as a fundamental freedom. The individual becomes
entitled to guarantee for him/herself a material guarantee for freedom, a space for
freedom in the material sense of the word and-at the same time—this ownership
enables that individual to develop her or his life in a responsible way. This kind of
private ownership should guarantee economic viability and freedom of entrepreneur-
ship of the owner as a citizen and as an economic actor. But at the same time private
property ownership forms the basis for unlimited enrichment and capitalist con-
centration of wealth in the hands of a few. Such a “stretched concept of property
ownership” showed itself as extremely useful in the post-Soviet political struggle
for control of financial and natural resources. One could hardly imagine a better
legitimation for holdings and other concentrations of financial-industrial capital in
order to allocate the basic wealth of Russia in the hands of a post-Soviet elite. The
Russian Civil Code provides a basis for this kind of post-communist development in
property rights.
The question, however, is not only whether the Civil Code builds in sufficient
mechanisms for control and attenuation of this neo-liberal approach but, also, how
to evaluate this normative approach to property rights in a transition period. In con-
temporary Russia it is not the enlightened citoyen who is turned into a capitalist but,
rather, the non-owning, privileged and powerful member of the communist elite, who
changed his power into property rights relating to the most important wealth in Rus-
sia. This happens while a mass of Russian citizens—having lived under “real social-
ism”—remains impoverished and unprotected, unable to use their newly acquired
private property rights.
It was professor Raissa Khalfina of the Institute of State and Law at the Russian
Academy of Sciences in Moscow, a specialist in Soviet civil law, who remarked
in a personal conversation with the author of this chapter—which took place at
the beginning of perestroika—“that You cannot go unpunished for a re-qualification
(conversion) of state property into private property as it concerns different roles these
types of property ownership have to play in society”.
It was indeed state property, as a qualified type of property within the Soviet
regime, that was about to be privatized. Seen from a legal point of view, state property
was that strange absolute and exclusive property ownership of the state as the sole
legal subject being able to appropriate this kind of property. In the ideological sense,
the problem was even worse, as state property was ideologically defined as “the
property of the whole people”. In a political sense state property translated the Soviet
purposive nature of political power (to build socialism).
It cannot be denied that the essence of post-Soviet privatization is an unprece-
dented operation of razgosudarstvlenie (“de-statisation”) of property. The state itself
was privatized and turned to the advantage of a narrow elite group who undermined
formal political institutions. The new (official) purposiveness of post-communist
regime, however, was to build the market, as yet another state-sponsored moderniza-
tion project (Malfliet 2009, 311–315). Developments in the transition from commu-
nism to capitalism and liberal democracy were immensely chaotic and contradictory
under Yeltsin. But with the coming to power of Vladimir Putin, the patrimonial state
was re-established, as a fundamental component of the re-assertion of state authority,
with again a blurring of the distinction between the public and the private.
Before the moment of radical change in property ownership (going from social-
ist state property to corporate enterprises and shareholdership), one can observe a
de-articulation of state ownership during the nineties. In this stage managers and/or
labour collectives in the enterprise were endowed with increasing autonomy in finan-
162 K. Malfliet
cial and budgetary matters. Property rights as such were not clearly defined in that
period, so that the existing management of the old state enterprises could keep a
free hand to decide on market strategy and organizational matters of enterprises. But
those all-powerful managers of state enterprises did not bear the risk of failure and
loss for the activities of their companies because these were still state companies
without their own private corporate identity and without risk of being dissolved in
a bankruptcy procedure. The title gap (“Who, after all, can be considered as the
real property owner?”), the bridging of which seemed to be the major occupation of
those drafting new legislation, gave the opportunity to managers to use their insider
information in an efficient way to become the new captains of industry.
The institution of trust as a form of split ownership (doveritel’naya sobstvennost’)
was seriously looked at in the course of post-communist privatization, with more
enthusiasm than Venediktov and others did during the Stalinist period. Trust was
even introduced by a Yeltsin decree in 1993, as a legal institution usable for the
privatization of state enterprises. But the new Civil Code of 1994 did not retain the
concept of trust as split ownership. Trust management (doveritel’noe upravlenie),
instead of a split ownership, became a civil law contract between the owner and the
trust manager (Benevolenskaia 2010, 65). The unitary concept of state ownership, or
at least a majority shareholdership control by the state, had to stay in place; ownership
split was out of question, because of the patrimonial interest of state power.
Privatization started with the introduction of a voucher system. Each Soviet citizen
received a voucher with a nominal value of 10.000 rubles. As in other postcommunist
transition countries this move towards a form of “people’s capitalism” was shortlived.
Other ways of privatizing (conversion and sell off, and workers’ property) were not
doing justice to the people either. On the contrary: it became a question of insider
trading among the elite. Enterprise managers transformed themselves into capitalist
owners in many ways. Examples of the creativity shown in the field of “re-arranging”
property rights are numerous: the transfer of state property to the balance sheets
of commercial structures or to their charter capital, the transfer of (parts of) state
enterprises by way of lease-buy back (arenda), the founding of autonomous legal
persons with mixed capital on the basis of structural subdivisions of the enterprise.
Loans for shares—as a privatization method—illustrates that even the pledge of
shares in state enterprises, as a right in rem for the creditor, could lead to a form
of privatization, that was lawful but soon showed its illegitimate features (McFaul
2001, 252).
The right of operative management of state enterprises was replaced in well
selected cases by khoziaistvennoe vedenie (full economic jurisdiction), a concept
that came closer to property ownership. Full economic jurisdiction appeared first in
the principles on Lease of 1989.10 This real right was recognized by Article 5 of the
Russian Property law of 1990. Full economic jurisdiction endowed state enterprises
with the right to possess, use and dispose of the property as if they were the owner,
10 “Osnovy zakonodatel’stva SSSR I soiuznykh respublik ob arende” (“Principles of legislation of
the USSR and the Union Republics on Lease”, Vedomosti SSSR 1989, No. 25, 481; Decree of the
Council of Ministers and Model Statute: Sobranie Postanovlenii SSSR 1989, No. 19–20, p. 63.
provided that legal acts did not foresee otherwise (Articles 47 and 5,2 of the Russian
property law). The owner or the person who is endowed with the right of full eco-
nomic jurisdiction obtained the right, among other things, to reorganize or liquidate
the enterprise (Malfliet 2009, 318).
All these constructions circumvented the problem that state property was systemi-
cally defined as not transferable, indivisible and exclusive. Metamorphoses took place
in a Byzantine confusion of who was the real owner. Gazprom was created overnight
as a holding, that succeeded the Ministry for production and export of gas for the
whole Soviet Union. That was the situation in the nineties, when privatization cre-
ated a situation of legal uncertainty and reversibility of property ownership. One can
argue that the whole privatization process with legal figures such as Goskomimushch-
estvo (the State Committee of the Russian Federation for the Administration of State
Property), leasing of state property, sale by auction and loans for shares, was set up
to counter the reproach of robbery and theft of state property and to define the new
private property as the result of a legal process, that developed according to the rules
of the game.
In this way a small group of oligarchs during the 1990s built their industrial
empires from privatized state property. They became extremely wealthy, powerful
and influential. Their fortunes, however, grew from an uncertain legal ground, and
corrupt behavior. Their private property rights were not certain, potentially legally
vulnerable should the Russian state take action. Their assets became “illegitimate
wealth facing arbitrary power” (Thomson 2005, 162).
7.8 Towards a New Functionality of Ownership?
That was exactly what Putin aimed at and focused on, each time when he talked to his
oligarchs: their private property was reversible: it could be taken away whenever they
were not obeying the leader. The Yukos affair was for the Kremlin a public showing
of the continuing absence of the very notion of the sanctity of property rights. In a
showcase of legal nihilism (the Russian government was not even trying to make
a credible commitment to the Rule of Law), the Kremlin made clear that patron-
client relations annihilated all formally guaranteed property rights. When Yukos
CEO Michail Khodorkovski was preparing to sustain the liberal political forces in
the country, he was condemned in several criminal cases and put in jail. His property
was confiscated. This assault against Mikhail Khodorkovski’s Yukos had to serve
as an example for the new breed of barons, that without formal property or friends
in the West, they had become totally dependent on Putin, just as the boyars in old
Muscovy in the end became locked into serving only one Grand Prince. The Yukos
case was also seen as an attempt by the security-administrative apparatus (in the shape
of Viktor Ivanov and Igor Sechin within the presidential administration) to halt the
shift in the balance of power in Russia from the public to the private sector. “In the
best neo-patrimonial traditions, the old guard feared the development of autonomous
sources of social, and thus of political, power” (Sakwa 2009, 340).
164 K. Malfliet
How to define the social function of property ownership when we can now observe
that the political elite in Russia is “playing” with the legal concept of private prop-
erty and that private property ownership has become the legitimation for a situation
that clearly misbalances the public and the private? Private property ownership can
become a dangerous concept when it starts to cover a reality of “misappropriation”.
In the Western Civil Law tradition the minds developed towards more openness
for the social function of private property ownership. Ownership is possession of
property in accordance with the law and as guaranteed by public authority. It is
created in the public interest. This means that the owner cannot abuse his property,
but is also bound to use his/her property in a proper way. Most economists and
legislators in Russia are not aware of such important phenomena as “externalities”
and social goods, which have worried their Western colleagues for years.11 These
black holes of the market mechanism dictate the need for a differentiated approach
to these matters and a refusal not only to privatize, but even to commercialize some
of these venues: to qualify them as commons.
Talking about post-privatization property ownership reforms, some Russian legal
theorists refer to specific socialist ownership forms (as a third way besides communist
and capitalist ones) and claim that in the course of privatization all people’s ownership
should have been concretized. According to Nersesiants, for example, the state was
never a subject of socialist property in the strict economic sense (Nersesiants 1994,
44–45). The state, in its relation to socialist property, was only a representative,
an agent of society, the people. By its nature, former socialist property had a social
(obhchestvennyi) complexion. During privatization, private property was introduced,
according to Nersesiants, without a corresponding private accountability. In his view
the inalienable right of each citizen to what he calls civilian property can serve as the
basis for a new typology, which would enable Russia to develop from socialism not
to capitalism, but from socialism and from capitalism to civilianism, as a third way.
This ideal vestment in common property (civilian, civilitarian property) is not to be
subject to any contractual agreement. The right of civilian ownership of each member
of society should be based on the premise of universality (abstractly common, supra-
individual, social-collective). Beyond this civilian property, as a social minimum, all
kinds of private property would be admitted, according to Nersesiants. This reminds
us of ideas that are discussed in a European Union context about the so-called basic
income for each European citizen (Van Parijs and Vanderborght 2017, 400).
11 New legislation, in most cases copied from western examples, has been enacted in this field. But
they do not rely on a coherent sustainability policy. Specific interpretation problems will arise when
these laws are implemented in a post-communist society; Law of the RSFSR “On Competition and
Restriction of Monopolitistic Activity on Commodity Markets”, Ekonomika I zhizn’ 1991, No. 19,
24; Law of the RSFSR “On Environmental Protection”, 19 December 1991, Vedomosti RSFSR
1992, No. 10, item 457.
7.9 Conclusion
In his book “The Social Function of Property and the Human Capacity to Flourish”,
Colin Crawford goes in search for an appropriate definition of those five words “The
social function of property”, “so pregnant with meaning and promise, yet for many
so ill defined” (Crawford 2011, 1089). Indeed, this phrase can usefully be understood
as a notion that aims to secure the goal of human flourishing for all citizens within
any state. However, the crucial institutional factor of post-communist capitalism is
not private property ownership as such, but the rules of the game according to which
the governance of that property is organized.
In Russia, after privatization, it is the category of private property related to the
newly created holdings such as Rosneft and Lukoil that remains a problem. Not only is
the title to these assets uncertain and conditionally tenured, moreover social corporate
responsibility or ecological accountability, let alone the idea of “the commons” are
not at issue. In this sense Léon Duguit was right when pointing at the social function
of private property, as a public responsibility for the owner. This is not (yet) reflected
in the spirit of post-communist private property ownership. This kind of private
property is by priority functional for the patrimonial state, that Russia still is, and for
serving not merely as dominium, but also as imperium.
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Part III
of Property—South America
Chapter 8
Liberalism and Property in Colombia:
Property as a Right and Property
as a Social Function
Daniel Bonilla
Abstract Liberalism has determined the structure of the property law regime in
Colombia. A genealogical analysis of the legal forms of the recent past that define
and regulate property provides evidence of three key periods in the creation and
consolidation of the right to property in the country.
Keywords Social function of property · Property rights · Property in Colombia ·

Constitutional law and property · Duguit and Latin America
8.1 Introduction
Liberalism has determined the structure of the property law regime in Colombia. A
genealogical analysis of the legal forms of the recent past that define and regulate
property provides evidence of three key periods in the creation and consolidation of
the right to property in the country. These three moments revolve around different
forms of interpreting and balancing three fundamental values in the liberal canon:
autonomy, equality, and solidarity. The first period, beginning in 1886 and ending in
1936, was marked by a classical liberal property system in which the Constitution
and civil law formed ideologically coherent machinery that prioritized the principle
of autonomy over the principles of equality and solidarity. In this legal structure,
the Civil Code defined property as a subjective and nearly absolute right. This form
of conceiving the right to property was strongly influenced by classical liberalism
and the codifying movement that had as its paradigmatic product the Civil Code
of Napoleon of 1804 (Mirow 2005, 179). The Colombian Civil Code of 1887 is
a replica of the Chilean Civil Code drafted by Andrés Bello, which was strongly
This chapter is republished with the kind permission of the Fordham Law Review (Daniel Bonilla,
Liberalism and Property in Colombia: Property as a Right and Property as a Social Function, 80
Fordham L. Rev. 1135 (2011)). (http://fordhamlawreview.org/wp-content/uploads/assets/pdfs/Vol_
80/Bonilla_December.pdf).
D. Bonilla (B)
University of the Andes School of Law, Bogotá, Colombia
e-mail: bonilla@uniandes.edu.co
172 D. Bonilla
influenced by the Napoleonic Code (Mirow 2001, 291).1 The Constitution of 1886
recognizes property as an acquired right and mandates that the state not violate this
right.2 However, the Constitution also recognizes the right of the state to expropriate
property for reasons of public use.
The second period, between 1936 and 1991, was structured as a mixed system that
recognized the social function of property in the Constitution but that preserved an
individualistic notion of property in the Civil Code. In this legal framework, there was
tension between principles of autonomy on the one hand, and solidarity and equality
on the other. Amending the Constitution of 1886, Legislative Act 1 of 1936 states
that property is a social function and includes reasoning of social interest (in addition
to public use) to justify the expropriation of property.3 In contrast, the constitutional
reform of 1936 preserved the classical liberal definition of property from the Civil
Code. Thus, although the Constitution defines property by means of the principle of
solidarity, the Civil Code does so using the principle of autonomy.
Nevertheless, the tension between the principles of solidarity, autonomy, and
equality that characterize this property system appears not only in the different con-
cepts of property defended in the Constitution and civil law. It is also made explicit
in the constitutional reform itself. Article 10 of Legislative Act 1 defines property as
an individual right and as a social function. Thus, the concepts of property as right
and property as social function, which are contradictory, structure the constitutional
reform of 1936. This inconsistency was also made explicit with the issuance of Law
200 of 1936, the agrarian reform law,4 and the issuance of Law 9 of 1989, the law of
urban reform.5 Both laws define property as a social function. These three norms are
clearly based on Léon Duguit’s critiques to the classical liberal concept of property
and his definition of property as a social function (Pereira and Lecera 2010, 59).
However, Congress did not realize that the two concepts of property are incompat-
ible, as noted by Duguit. The case law of the Supreme Court does not resolve this
tension either. Rather, it maintains it. Although the Court defends and develops the
constitutional clause that indicates that property is a social function, it also upholds
the constitutionality of Article 669 of the Civil Code, which defines property from a
classical liberal view.6
The inconsistency of the property system becomes more complex when examining
the tensions that exist within the legal culture surrounding the concept of “Consti-
tution.” In one corner of the debate, a classical legal culture emerges that advocates
for a radical separation between private and public law and a notion of the Con-
1 The Chilean Civil Code was also strongly influenced by Justinian’s Corpus Iuris Civilis and Alfonso
X’s Seven Parts (Siete Partidas) (Mirow 2005, 304, 309).

2 Constitución de la República de Colombia 1886, Article 58 (W M Gibson translation 1948).
3 Legislative Act 1/36, agosto 5, 1936, DIARIO OFICIAL [D.O.] 23263, Article 10.
4 L. 200/36, diciembre 30, 1936, DIARIO OFICIAL [D.O.] 23388.
5 L. 9/89, enero 11, 1989, DIARIO OFICIAL [D.O.] 38650.
6 Corte Suprema de Justicia [C.S.J.] [Supreme Court], Sala. Plena agosto 11, 1988, M.P: Jairo Duque
Perez. Cases decided by the Colombian Supreme Court since 1988 can be found at http://www.
cortesuprema.gov.co/corte/index.php/jurisprudencia/.
8 Liberalism and Property in Colombia: Property as a Right … 173
stitution as a political program—not as the supreme norm of the legal system that
can be immediately and directly applied. This legal culture, inherited from the clas-
sical French liberalism that influenced the Regeneration,7 considers statutes to be
supreme in the legal order. The Constitution can only be applied when the legislature
makes laws that specify its mandates. In the other corner, there was the Marching
Revolution (Revolución en Marcha), the government program advocated by liberal
president Alfonso López Pumarejo (1934–38) (Bushnell 1993, 185–192). This pro-
gram focused on transforming the Constitution as a spearhead of political and social
change. This movement has at its center the constitutional recognition of a strong
interventionist state in Colombia. That transformation, however, was significantly
affected by a legal culture that considered civil law the true law and the center of the
legal system.
The third and final property system, instituted in 1991 and still in effect today, is
an ideologically consistent constitutional and legal framework committed to the idea
that the right to property must be defined through the principles of solidarity and
equality. Consequently, in this third property system, the principle of autonomy is
subordinated to the principles of solidarity and equality. Nevertheless, the ideological
coherence of this third property system is a result of the case law of the Constitutional
Court. The Constitution of 1991 preserved the contradictions that spanned the second
property system of Colombia’s recent history. Article 58 of the Constitution states
that property is a social function, that the state should protect rights to justly acquired
property, and that the state may expropriate property for reasons of public use and
social interest.8 Hence, the new Constitution reproduces the contents of Legislative
Act I of 1936 and therefore preserves in its text the contradiction between property as
right and property as function. Similarly, the Constitution of 1991 preserved Article
669 of the Civil Code and thus the contradiction between an individualistic concept
of property and one grounded in solidarity.
Nevertheless, in ruling C-595 of 1999, the Constitutional Court declared uncon-
stitutional the sections of Article 669 of the Civil Code that violated the constitutional
right of property as a social function.9 In this decision, the Court also resolved the
contradiction in the text of Article 58 of the Constitution between property as right
and property as function.10 The Court stated that property is an individual right that
has internal and external limits. The Court then defended and questioned Duguit, who
was mentioned explicitly. For the Court, the social function of property is not incon-
sistent with the concept of a subjective individual right. The Court views property as
a right-duty that imposes social obligations on the owner.
7 The Regeneration (La Regeneración) was the Polítical movement led by Miguel Antonio Caro and
Rafael Nunez that was responsible for the drafting and approval of the 1886 Constitution.
8 Constitución Política de Colombia, Article 58.
9 Corte Constitucional [C.C.] [Constitutional Court], agosto 18, 1999, M.P: Carlos Gaviria Díaz,
Sentencia C-595/99. Cases decided by the Colombian Constitutional Court can be found at http://
www.corteconstitucional.gov.co/.
10 Ibid.
174 D. Bonilla
Yet, the Constitution of 1991 not only reproduces the text of the constitutional
reform of 1936, but goes much further in defending the principle of solidarity. Article
58 of the Constitution states that property has an ecological function, that the state
may expropriate property by administrative means (not merely judicial), and that
the state has the duty to protect associational and collective forms of property. The
Constitution also expressly establishes that Colombia is a “social State of law” and
that the principle of solidarity is one of the pillars of the Colombian State.11 The
Constitution makes clear that the social function of property is not an isolated legal
form but is part of the institutional and ideological structure designed by the National
Constituent Assembly of 1990 (NCA). The case law of the Constitutional Court
confirms this interpretation. In a long line of case law, the Court develops the clause
of the social function of property and protects the power of the state to regulate and
limit this right.12
The three property systems were not built in a vacuum. They are a function of
the political struggles since the nineteenth century, which sought to define the basic
structure of the Colombian state. First, the individualistic property system emerged
from the liberal authoritarian state established with the Constitution of 1886. The
emergence of this legal framework was a direct consequence of the triumph of the
political movement of the Regeneration led by Miguel Antonio Caro and Rafael
Núñez. As a key instrument of the Regeneration project, the Constitution of 1886 had
three primary objectives. First, the Constitution sought to strengthen the Colombian
nation-state around a conservative ideology in the cultural field.13 The Regeneration
established the Catholic religion and the Spanish language as the axes of the Colom-
bian nation.14 Second, the Constitution aimed to ensure the order and unity of the
country that had been challenged by the wars between federalists and centralists that
dominated the Colombian political landscape during the second half of the nineteenth
century. With this in mind, the Regeneration implemented a politically centralized
but administratively decentralized state.15 Similarly, it established a strong presi-
dential system that recognized but limited classic individual freedoms.16 Third, the
Constitution intended to strengthen the emerging market economy that existed in the
country in the late nineteenth century. The Regeneration sought to bring Colombia
out of an incipient capitalist economy centered on the plantation and into a capitalist
system connected to the international markets (Palacios and Safford 2002, 469–471).
The classic liberal property system that was introduced with the Constitution of 1886

12 The Constitutional Court has decided ten cases directly related to the social function of property.
See infra note 76.
13 See, e.g, Rozo (2011).
14 Constitución de la República de Colombia 1886, Articles 38, 53 (W M Gibson translation 1948).
The 1886 Constitution does not explicitly protect Spanish. However, Spanish played a fundamental
role in the conservative thought of the Regeneration. The defense of the “Spanish Soul,” to which
Colombia was a part, was directly linked with the protection of Spanish. For the role played by
Spanish and the “Spanish Soul” in the Regeneration, see Muñoz (2007), 141.
15 Ibid. Article 1, tit XVIII.
16 Ibid. tit III, Article 59.
and the Civil Code of 1887 played a fundamental role in this project. On one hand,
it expressed and promoted the economic program of the Regeneration, focusing on
the protection of private property; on the other hand, it facilitated the transfer and
flow of goods in the weak Colombian market economy.17
After the rise of the individualistic property system, the mixed system (property
as social function and individualist property) was born with the constitutionaliza-
tion of the liberal interventionist state that occurred with Legislative Act 1 of 1936
(which amended the Constitution of 1886). This change in the legal framework gov-
erning property was a consequence of López Pumarejo’s rise to the presidency and
therefore the consolidation of the Liberal Party in power.18 López Pumarejo’s gov-
ernment program, the Revolución en Marcha, contained the foundation that allowed
for the constitutional recognition of the interventionist state in Colombia19 -a state
committed to distributive justice and therefore having broad powers to regulate the
economy. It is not surprising, then, that property was redefined as a social function
under this government.20 This reinterpretation of property would permit the state to
attack one of the primary social and economic problems Colombia has historically
faced: the inequitable distribution of land (Botero 2006, 92–97). Consequently, it
also negated one of the primary sources of conflict in the country. Property as a
social function permitted the expropriation of land that was not put into production
by the owners; it would, on paper, be the foundation of the most ambitious agrarian
reform in Colombian history (LeGrand 1986).
Third, the property system based on solidarity was consolidated and expanded
with the issuance of the Constitution of 1991 and the definition of the Colombian
state as a Social State of Law (Copello 2001, 8). This new property system was the
result of broad political agreement reached in the NCA on the need to strengthen
the constitutional foundations of the interventionist state in Colombia. Consequently,
property as social function became a cornerstone of the constitutional edifice (Robles
2003). Again, this legal institution was presented as the instrument that would allow
for attacking the unsolved problem of the inequitable distribution of land. Property
as a social function was therefore presented as a tool that would help address some
of the problems of inequality and poverty central in the history of Colombia. One
cannot forget that the NCA was seen by broad sectors of Colombian society as
a mechanism to rebuild the political community and to achieve peace and social
justice in the country (Restrepo 1991, 61–65). These sectors were convinced that
an inclusive and democratic constitutional process in which all Colombians were
represented would permit the creation of a legitimate state with the tools necessary
17 Constitución de la República de Colombia 1886, Articles 31–32. Articles 31 and 32 recognized the
right to private property, the exceptional character of expropriation, and the obligation to compensate
all expropriations. Secure property rights are a precondition of any market economy.
18 Revolución en Marcha, a program of López Pumarejo’s government, consolidated what has been
called the liberal hegemony in Colombia that began with the government of Enrique Olaya Herrera
(1930–34). Olaya Herrera’s government signified the ascent of the Liberal Party after the conser-
vative Republic was initiated in 1886 (Bushnell 1993, 181–185).
19 See Legislative Act 1/36, agosto 5, 1936, DIARIO OFICIAL [D.O.] 23263, Article 11.
20 See Ibid. Article 10.
176 D. Bonilla
to tackle contemporary Colombia’s serious economic, political, and social problems

(Restrepo 1991, 61–65).
Nevertheless, the three periods that comprise the recent history of the right to
property in Colombia are structured around a set of five conceptual oppositions:
individualism-solidarity; limited intervention-general intervention; private-public;
Constitution as political program-Constitution as norm; and property as a right-
property as social function. These conceptual oppositions have defined the academic
and political debate on property over the past 125 years in Colombia. In this dualistic
debate, each of the components of the conceptual oppositions has been intertwined
with its ideological “peer” in order to shape two theoretical camps continually in
conflict. Thus, on one end, the classical liberal side is made up of the categories
“individualism,” “limited intervention,” “private,” “Constitution as a political pro-
gram,” and “ownership as a right”; on the other end, the liberal interventionist side is
comprised of the categories of “solidarity,” “general intervention,” “public,” “Con-
stitution as a norm,” and “property as social function.” Thus, reconstructing the legal
and political imagination on property in recent Colombian history has to evaluate
how these conceptual oppositions interact, are interpreted, and accommodated.
To develop these ideas, I divide this Chapter into three parts. In the first Part,
I reconstruct and examine the classical liberal system that constituted the first key
period of the recent history of the right to property in Colombia (1886–1936). The
proclamation of the Constitution of 1886 is a milestone in the consolidation of the
modern nation-state in Colombia. The Constitution of the Regeneration remained in
effect until 1991, with several modifications. In the second Part, I analyze the mixed
system of property, classical liberal-liberal interventionist, which forms the second
period in the recent history of the right to property in the country (1936–91). In the
third and final Part, I study the liberal interventionist property system consolidated
with the Constitution of 1991 and still in effect today. In each of these sections, I
analyze the components of the conceptual oppositions that justify the three property
systems. I also examine the contents of these categories and how they intertwine to
build the models that have served to define and regulate property in the country. The
Chapter thus does not aim to examine the effectiveness of the three property systems
or their consequences. Rather, it seeks to describe their components, to analyze the
legal and political categories that justify them, and to demonstrate the ties with the
political contexts in which they emerge and are consolidated.
8.2 The Classical Liberal Property System
The first stage of the recent history of property in Colombia has the Constitution of
1886 and the Civil Code of 1887 as its two major legal components, and classical
liberalism as its political justification. During this period, both the Constitution and
the law were committed to a system configured around the autonomy of the owner
and in which the principle of equality was generally interpreted as the equality of
all owners before the law. Similarly, in this legal framework, solidarity was not
a relevant value for interpreting the right to property. Thus, this legal framework
defines property as an individual and nearly absolute right. Article 669 of the Civil
Code affirms, “Ownership (also called property) is the real right to a corporeal thing,
to enjoy and dispose of it arbitrarily, not being against the law or against the rights of
others”.21 Conversely, and consistent with the classical liberalism implicit in the Civil
Code, the Constitution of 1886 required the state to protect citizens’ right to property.
The Constitution recognized property as an acquired right and prohibited the law
from ignoring or violating rights to properties that were justly obtained. However,
the Constitution of 1886 also established the right of the state to expropriate property
for reasons of public use that are defined by law, provided that the owner receives
just compensation. Article 31 of the Constitution of 1886 states:
Rights acquired by individuals and corporations under a proper title and according to the
civil law shall not be disavowed or violated by laws subsequently enacted. When in the
application of a law enacted for the public welfare there should result a conflict between
private rights and a recognized necessity for that law, private interests shall yield to public
interests. But for any expropriations which it may be necessary to make there shall be given
full indemnity …22
This property system reproduced the legal framework established in the French
Civil Code of 1804. The Colombian Civil Code is a replica of the Chilean Civil
Code drafted by Andrés Bello, which was strongly influenced by the Napoleonic
Code (Medina 2009, 8–9). Article 544 of the Civil Code of Napoleon, known as the
owners’ code, affirms, “Property is the right of enjoying and disposing of things in
the most absolute manner, provided they are not used in a way prohibited by the laws
or statutes…. No one can be compelled to give up his property, except for the public
good, and for a just and previous indemnity”.23 The only difference between the two
property systems is that the Colombian one separates the components of the right
to property that in the French code appear united.24 The Civil Code of 1887 defines
the right to property and outlines its limits and the Constitution of 1886 declares the
right of the state to expropriate goods for reasons of public use. Nevertheless, both
documents are committed to a system of property that revolves around the autonomy
and formal equality of owners.25
21 Código Civil (Civil Code) Article 669. The classical liberal property system is formed also by
Articles 670 (ownership of intangible property) and 671 (intellectual property) (Restrepo 1991,
61–65).
23 Code Napoleon, Articles 544–545. Article 582 of the Chilean Civil Code states that “Ownership
(also called property) is the real right to a corporeal thing, to enjoy and dispose of it arbitrarily, not
being against the law or against the rights of others” (Código Civil (Civil Code) (Chile), Article
582).
24 A minor difference between the texts of the French Civil Code and Bello’s code is that in the
latter the word “regulations” is replaced by the phrase “rights of others.” This difference is not
particularly relevant in that one of the liberal principles justifying the two codes is that the rights of
third parties limit individual rights.
25 Moreover, both legal systems consider the right of property to be a natural right. Article 19 of the
1886 Polítical Constitution of Colombia states, “The authorities of the Republic are established in
178 D. Bonilla
This system of property protects and controls the relationship between an

autonomous, abstract, and isolated individual and an object (Lomasky 1987,
111–151). In this regard, the owner has a high degree of autonomy over her own
property. Owners have the power to make use of, gather the fruits of, and dispose of
the material or immaterial reality they control in the way they deem appropriate. In
the Colombian Civil Code, this broad degree of discretion is marked by the adverb
“arbitrarily,” which qualifies how the owner can make use of the object.26 The only
limits imposed are those of the rights of others and public use. The rule is the state’s
protection of the autonomy that the owner has over her property. The exception is
its limitation. The limits imposed on the right to property are therefore external. The
owner has no obligation in connection with the object. She has no duty to relate to her
property in a particular way. Her only duty is to act in a way that does not violate the
rights of third parties. In the terms of the Colombian Civil Code, the owner cannot
act “contrary to the law or the rights of others”.27
In this way, the subject of the right to property in the Constitution of 1886 and the
Civil Code of 1887 is a person who has the ability to make decisions about the property
she wants to acquire and how to use it. These are not marginal decisions. They are
part of the process of choosing, modifying, and implementing a life plan. Property
plays a fundamental role in this process of the construction and reconstruction of the
subject (Mack 1990, 522–523). An individual’s property is both an expression and an
instrument of their life plan. Property involves a series of decisions about the things
that the subject considers valuable and the role these things play in the realization of
her moral commitments. Consequently, property constructs and expresses individual
identity. In classical liberalism, the individual and her property are closely intertwined
(Narveson 1988, 66).
However, the content of the decisions that the subject makes with respect to her
property is not relevant in classical liberalism (Lomasky 1987, 84–110), nor is the
type of identity that the subject constructs with these decisions. The subject of the
right to property in classical liberalism is an abstract, disembodied subject. In classical
liberalism, all that matters is protecting and enhancing the power characteristic of
the members of the human species: autonomy (Lomasky 1987, 84–110). In issues of
property, this involves creating the conditions for individuals to obtain and protect
the goods they consider valuable for their life plans. The liberal state does not aim
to intervene in society so that all people become owners. It only intervenes to create
and apply the legal and political framework that allows individuals to acquire and
maintain the properties they deem valuable through their own efforts. The principle
order to protect the lives, honor, and property of all persons residing in Colombia, and to assure the
mutual observance of natural rights, and the prevention and punishment of crimes” (Constitución
de la República de Colombia 1886, Article 19 [W M Gibson translation 1948]). Article 2 of the
Declaration of the Rights of Man and of the Citizen of 1789 states, “The purpose of all civil
associations is the preservation of the natural and imprescriptible rights of man. These rights are
liberty, property, security, and resistance to oppression” (Declaration of the Rights of Man and of
the Citizen 1789, Article 2).
26 Código Civil (Civil Code) (Chile), Article 669.
27 Código Civil (Civil Code) (Chile), Article 669.
of equality in this property system can therefore be interpreted as formal equality.

All individuals can become owners and all owners are equal before the law. Equality
is thus a function of autonomy. Without the recognition and protection of property,
people could not choose, transform, or realize their life plans.
Nevertheless, the relationship of domination over an object protected by the clas-
sical liberal right to property implies obligations for third parties (Epstein 2009).
The owner has a right-duty that imposes obligations to both the state and others.
The state has negative and positive obligations. It must refrain from any act that
affects the decisions made by the individual over his property and must act to protect
the property of its citizens and to resolve conflicts that arise over property rights or
between them and the public interest. In the Constitution of 1886, this duty is evident
in the right of the state to expropriate property when it conflicts with the principle
of public use.28 Individuals, meanwhile, have a duty to refrain from interfering with
the property of others. The subjective right to property then manifests in two ways:
duties of omission, which are the rule, and duties of action, which are the exception.
Consequently, the subjective right to property is a relational right. It implies and
regulates the interactions of the right to property held by individuals and the state.
However, this notion of subject (autonomous and abstract) presupposes the sep-
aration between the public sphere and the private sphere.29 The first is the domain
of justice, the space where the basic structure of the community is decided, political
power is distributed, and the criteria for allocating scarce resources are agreed upon
by the members of the polity. The second is the domain of morality, the area where
the individual constructs, transforms, and tries to realize her life plan. Classical lib-
eralism situates property in the private sphere. The individual, in the privacy of the
home, makes decisions that seem relevant to her property. The main task of the state
must therefore be ensuring the right of the subject to be left alone. The state should
intervene only to create the legal and political framework that will protect property
and allow for resolving the conflicts that arise around it. Hence the typical subject-
owner of classical liberalism is also an isolated subject (Williams 1991, 165–180).
Social relationships represent a risk to her property and autonomy. The best way to
protect this principle and right is therefore to keep a safe distance from other individ-
uals. This is also why the classical liberal property right is fundamentally a negative
right. Finally, this is why the principle of solidarity does not play a role in defining or
exercising the classic liberal right to property. The interdependence between people
is irrelevant to the property system that defends this political perspective. Property
is a function of autonomy. Property is important for the role it plays in expressing
28 The Constitution states:
When in the application of a law enacted for the public welfare there should result a conflict
between private rights and a recognized necessity for that law, private interests shall yield to
public interests. But for any expropriations which it may be necessary to make there shall
be given full indemnity …
Constitución de la República de Colombia 1886, Article 31 (W M Gibson translation 1948).

29 See
generally Gaus (1983).
180 D. Bonilla
and facilitating the realization of individuals’ moral projects. From this perspective,
the “other” only appears as a limit to the right to property.
The triumph of the classical liberal property system in Colombia was tied to
the political and military struggles between centralists and federalists, liberals and
conservatives, which characterized the second half of the nineteenth century. This
legal framework emerges as a consequence of the political and military success of
the Regeneration movement. This political movement, led by Rafael Núñez and
Miguel Antonio Caro, had three primary objectives: strengthening the Colombian
nation-state around a conservative ideology on social and cultural issues (Melo 1989);
restoring order and ensuring the political stability that was lost with the wars between
centralists and federalists (Melo 1989); and strengthening the country’s emerging
market economy (Gonzalez 2007, 175–180).30
The imagined political community constructed during the Regeneration revolved
around the idea that the Colombian state should reflect and protect the element that
supposedly characterized the nation: Catholicism (Villa 1987, 140–148). The Consti-
tution of 1886 thus declared Catholicism to be the religion of the Colombian state.31
Núñez and Caro believed that social cohesion should be achieved through the state’s
defense of the elements that constituted the ethos of the nation.32 Similarly, the
Regeneration structured the Colombian state around a monistic liberal interpretation
of the state and the economy.33 The Constitution of 1886 created a legal and political
order that was centralized politically and decentralized administratively.34 Similarly,
the Constitution established a strong presidential system that recognized classical
individual liberties but limited them in accordance with law and the public interest.35
The social and cultural conservatism of the Regeneration intersects with its author-
itarian political liberalism. Similarly, these two features intersect with its economic
liberalism: the Constitution of 1886 establishes a market economy in Colombia.36
The classical liberal property system that was constructed with the Constitution
of 1886 and the Civil Code of 1887 played a fundamental role in the political project
of the Regeneration. The individualistic concept of property allowed a formal break
with the incipient capitalist system, centered on plantations, which still existed in
much of Colombia in the late nineteenth century (Palacios 2002). A market economy
is not possible without the circulation and use of property. In particular, in an agrarian
society like Colombia in the second half of the nineteenth century, it was not possible
to create a capitalist economy without the free and easy transfer of land between cit-
izens (Palacios 2002). Nor was this economic system possible in Colombia entering
30 Gonzalez describes the economic changes in Colombia beginning in 1878.

31 Constitución de la República de Colombia 1886, Articles 38–41.
32 The other element was language. For the Regeneration, Spanish was a fundamental component
of the nation’s ethos. Yet, there is no explicit reference to Spanish in the 1886 Constitution.
33 For a detailed analysis of the concept of legal monism and the values it defends, see Higuera and
Maldonado (2007).
34 Constitución de la República de Colombia 1886, Article 1, tit XVIII.
35 Ibid. tit III.
36 Constitución de la República de Colombia 1886, Articles 19, 31–35, 37, 44.
the twentieth century without the exploitation of this resource to produce the surplus
of raw materials necessary for the country’s industrial development. However, this
free circulation and operation of land needs the recognition and demarcation of the
right to property by the state and therefore its legal and political protection. The
security and stability of the right to property are necessary for the proper functioning
of any market economy.
The project of the Regeneration is differentiated from the federalist project
imposed by the Constitution of 1863 in a notable fashion. The presidentialism, cen-
tralization of legal and political power, state identification with the Catholic religion,
and the limited nature of individual rights that characterize the Constitution of 1886
contrast with the institutional priority of the legislative branch,37 the federal struc-
ture,38 the separation of church and state,39 and the recognition and broad protec-
tion of individual rights that characterize the Constitution of 1863.40 Nevertheless,
there remain some important constants between the two projects. The continuities
between the Radical Olympus41 and the Regeneration are also significant (Palacios
2002, 268–272). The traditional historiography, which focuses on the differences
between the liberal party and the conservative one in interpreting the second half
of the nineteenth century in Colombia, obscures these continuities (Palacios 2002,
268–272). Formally, both projects are committed to democracy, the tripartite division
of public power, individual rights, and the market economy. These values, princi-
ples, and institutions are reflected in the Constitution of 1863 and that of 1886. Both
political projects are therefore committed to central components of liberalism. The
two political projects are part of the liberal family.
However, each project has a different interpretation of the content of these compo-
nents and their priority. The Regeneration is primarily an authoritarian liberal project
that interprets liberal principles in a conservative manner and occasionally departs
from some of them, as in the case of the principle of separation of church and state.42
Its primary objective is to ensure order and institutional stability. In contrast, the
radical project reflects the classical liberal ideals well known in Latin America in the
37 Constitución Política de los Estados Unidos de Colombia 1863, Chap. 6.

38 Ibid. Articles 1, 36.
39 Ibid. Articles 15(16), 23.
40 Ibid. section 2.
41 The Polítical movement behind the federalist project of 1863 was called the Radical Olympus.
42 In relation to this issue, however, the Constitution of 1886 tries to find a balance between con-
flicting values. Article 40 recognizes freedom of worship, provided it does not violate Christian
morality, and Article 38 states that Catholicism, as the religion of the majority of Colombians, must
be protected by the state. Nevertheless, Article 38 also indicates that Catholicism is not an official
religion, stating,
The Apostolic Roman Catholic Religion is the religion of the Nation. The public authorities
shall protect it and cause it to be respected as an essential element of the social order. It is
understood that the Catholic Church is not and shall not be an established Church, and it
shall preserve its independence.
Constitución de la República de Colombia 1886, Article 38 (W M Gibson translation 1948).
182 D. Bonilla
second half of the nineteenth century. Its primary objective is defending the principle
of autonomy. The continuities between the two models become clearer when con-
sidering that the Civil Code issued by Congress in 1887 for the Unitary Republic of
Colombia was the same code issued in 1873 for the United States of Colombia. Influ-
enced by French liberalism, Bello’s code regulates the relations between individuals
in Colombia in both political models. In both, moreover, the code is the center of the
legal order. In the two political projects, the right to property plays a fundamental
role and is justified from a classical liberal perspective.43 The autonomy and for-
mal equality of citizens, along with the protection of private property, become the
axes around which Colombian law revolves. The norms governing relations between
individuals become the pillar of the legal order. The fundamental contents of the
Napoleonic Civil Code are not different from the basic contents of the Colombian
Civil Code and therefore the legal system of the Regeneration.
Nevertheless, to understand the role played by the property system in the political
project of the Regeneration, it is important to examine the position of the civil law
within the legal system and the concept of the Constitution that this political perspec-
tive defended. For the Regeneration, as well as a good part of the continental liberal
legal tradition, civil law is the core of the legal system. The Civil Code, the core
of civil law, regulates all matters concerning relations between individuals. It is all-
inclusive. The code also consists of a set of general and abstract norms. The equality
and freedom of citizens are thus guaranteed. The civil legal norms apply to all citi-
zens and, in principle, have an “eternal vocation.”44 The code is a creation of reason.
However, it is also a creation of the will. In liberal political communities, legal norms
should be a product of both reason and the will of the people (Kahn 1999, Chap. 1).
Consequently, Congress should endorse the codes so that they can enjoy democratic
legitimacy. Marginalizing reason in the lawmaking process implies allowing the
whim of the majority to be imposed. Regardless of the content of the decision made,
the legal norm must be understood as valid. Marginalizing will implies that the legal
norm created does not have democratic legitimacy. The political community would
be heteronomous.
Yet, in the balance of the Colombian political community, as imagined by the
Regeneration, the will is subordinate to reason. The Civil Code adopted by the
Colombian Congress is a copy of the Chilean Civil Code, which was in turn strongly
influenced by the Civil Code of Napoleon. Without accepting that the code was
primarily a result of reason, it would be very difficult to understand how it could
be imported from France to contexts as diverse as the Colombian or Chilean.45
43 The classical liberal property system of the Regeneration is therefore in tension with its con-
servative interpretation of the liberal canon on cultural and social matters, particularly with the
strong influence of the church in public and private issues. In other matters such as women’s rights,
however, the Civil Code fits well with the conservative Catholic values of the Regeneration.
44 Napoleon noted to this effect, “My true glory is not that I have won forty battles. Waterloo will
blow away the memory of these victories. What nothing can blow away, what will live eternally is
my Civil Code” (Bergel 1988, 1078–1079).
45 On this subject Portalis says, “Statutes are universal reason, the supreme reason based on the
nature of things. Statutes are or should be the law reduced to positive rules” (Portalis 1997, 10–11).
The idea that the Civil Code is complete, coherent, and univocal is widely rooted
in the Latin-American legal imagination. The argument that Latin America is part
of the Roman-Germanic legal tradition is not sufficient to justify the transplant of
a norm as important as the Civil Code. The differences of context would require
changes between the French and Latin American norms. Variations in social, cul-
tural, economic, and political issues create different kinds of needs and normative
commitments that would require a distinct civil code for Latin America.
The central character of civil law in the Colombian legal system goes hand in
hand with a concept of a weak Constitution (Villa 1987, 145–146). From this point
of view, the Constitution is exclusively a political program. It is not a legal norm with
immediate and direct application. Hence, the Regeneration included Article 52 in the
Constitution of 1886, which affirms, “The provisions contained in this title [of Civil
Rights and Social Guarantees] shall be incorporated in the Civil Code as a preliminary
title and may not be altered except by an act amending the Constitution”.46 Civil
law is supreme in the legal system of the Regeneration, not the Constitution. The
constitutional provisions are only applicable when Congress develops them by means
of a law. Thus, with Article 52, the Regeneration ensures the application of civil
rights and situates civil law at the heart of Colombia’s legal and political order. The
Constitution remains tied to the Civil Code. This interpretation of the Colombian
legal order is consolidated in Article 6 of Law 153 of 1887, which states, “An express
provision of a law subsequent to the Constitution is deemed constitutional, and shall
be applied even when it seems contrary to the Constitution”.47 The law (la ley) is then
presumed constitutional (Arango 2002, 150). This presumption cannot be questioned.
The Constitution of 1886 did not grant the Supreme Court powers for the control of
constitutionality, and in the ruling of September 14, 1889, the Court accepted that
it did not have the power to declare the norms created by the national Congress to
be unconstitutional.48 Consequently, Article 10 of the Civil Code, which indicates
that contradictions between the Constitution and the law should be resolved in favor
of the former, is only a paper rule. Even though the constitutional reform of 1910
granted the Supreme Court judicial review powers,49 in practice the law remained
supreme in the legal order. The Supreme Court certainly declared a number of laws
to be unconstitutional between 1910 and 1991. However, the legal community still
considered civil law to be the core of the legal system and the Constitution a norm
with no direct and immediate application. The legal culture did not begin to shift on
this matter until the issuance of the Constitution of 1991.50 In sum, this first period
in the recent history of property in Colombia is structured around the autonomy of
owners. In this legal framework, the state should intervene only to recognize the
right to property and to ensure its protection. The state should not cross the line

47 L. 153/87, agosto 28, 1887, DIARIO OFICIAL [D.O.] 7151 & 7152, Article 6; see Arango (2002),
150.
48 Corte Suprema de Justicia [C.S.J.] [Supreme Court], Sala. Plena septiembre 14, 1889.
49 Legislative Act 3/10, octubre 31, 1910, DIARIO OFICIAL [D.O.] 14131, Article 41.
50 See infra notes 68–74 and accompanying text.
184 D. Bonilla
separating the public sphere from the private sphere. Owners should be left alone so
they can make the decisions that they deem necessary with respect to their property.
Property, as well as the market, forms part of the sphere where individuals construct
and realize their life plans. The state should only intervene to create and maintain
the legal and political conditions that allow the free play of supply and demand. This
property system is reinforced by the central role played by civil law in the Colombian
legal system. The Civil Code is the core of the legal system. The Constitution, by
contrast, is interpreted as a political program that has no immediate application. The
Constitution is not ultimately a legal norm that can generate immediate and direct
consequences for citizens. It is necessary that the law regulate it so that it can have
an impact on society. The law is supreme in the classical French liberal order of the
Regeneration.
8.3 The Mixed System of Property: Classical Liberalism

and Interventionist Liberalism
The second key period for understanding the history of the right to property in
Colombia has as its main components Legislative Act 1 of 1936, the Civil Code
of 1887, Law 200 of 1936, Law 9 of 1989, and the Supreme Court’s case law on
property. In this second phase, beginning in 1936 and ending in 1991, a classical
liberal concept of property coexisted with a liberal interventionist one. The concept
of a subjective and nearly absolute right to property, which appears in Article 669 of
the Civil Code, coexisted with the concept of property as a social function that enters
the Colombian legal system with Legislative Act 1 of 1936, is consolidated with Law
200 of 1936, and developed with Law 9 of 1989. This conflict is also made explicit
in the content of Article 10 of Legislative Act 1. Article 10 defines property as both a
right and as a social function. The conceptual tension is then manifested in three areas
of the legal system: in the Constitution itself, between the Constitution and the law,
and between two laws in the same hierarchy. Unfortunately, the Supreme Court’s
case law on property does not resolve these structural conflicts in the Colombian
legal system, but reproduces them.
The process of transition from a classical liberal property system to the mixed sys-
tem, classical liberal and liberal interventionist, began with Legislative Act 1 of 1936.
Article 10 of this act defines property as a social function, allows for expropriation
for reasons of social interest (not just for public use), and allows for expropriation
without compensation for reasons of equity when an absolute majority of the Senate
and House of Representatives votes in favor of the measure.51 The new Article 26
of the Constitution therefore introduced several elements in the Colombian property
system. However, these new components of the legal framework of property did not
repeal the rules established by the Regeneration. Congress simply broadened the
original text of Article 31. It did not fully transform it. The property system estab-
51 Legislative Act 1/36, agosto 5, 1936, DIARIO OFICIAL [D.O.] 23263, Article 10.
lished by the Constitution of 1886 survived the reform of 1936. The text of Article
26 of the Constitution remained as follows after its amendment:
Private property and other rights legally acquired in accordance with the civil laws by natural
or juridic persons shall be guaranteed, nor may they be disavowed by later laws. When the
enforcement of a law passed for reasons of public utility or social interest conflicts with the
rights of individuals, private interests must give way to the public or social interests.
Property is a social function which implies obligations.
For reasons of public utility or social interest, as defined by the legislature, property may be
expropriated by judicial decree with prior indemnification.
Nevertheless, the legislature, for reasons of equity, may deny indemnification by means of
an absolute majority vote of the members of both Houses.52
Article 26 is therefore contradictory. It simultaneously defines property as a right

and a social function. Property is simultaneously a subjective and nearly absolute
individual right and an obligation that is imposed on the subject as a consequence of
the interdependence between members of a society. In the first concept of property,
an individual holds a title that creates obligations toward third parties. In the second,
the individual does not have any rights over her property. She has a duty to use it
to generate benefits for society. The state only has an obligation to protect property
when it fulfills its social function. The same contradiction exists between the con-
stitutional concept of property as social function and Article 669 of the Civil Code.
The constitutional reform of 1936 does not transform the civil norms on property.
This contradiction was furthered with the issuance of Law 200 of 1936 and Law
9 of 1989. Law 200, enacted a few months after the constitutional amendment, had
the main objective of redistributing rural land in Colombia. This legal norm aimed
to design and implement agrarian reform in the country (Ramirez 2008,). To that
end, Law 200 defined property as a social function,53 granted the executive the tools
to seize ownership of lands that were not being operated by their owners,54 allowed
for the adverse possession of vacant lands that were occupied in good faith,55 and
created the institutional and procedural tools (judges and land processes) to resolve
conflicts related to the use, holding, and possession of land.56 Law 9, on the other
hand, sought to regulate the management and growth of Colombian cities as well
as the distribution of land and the protection of public space.57 One of its specific
52 Constitución de la República de Colombia 1886 (amended 1936), Article 26 (W M Gibson
translation 1948).
53 Article 1 of Law 200 of 1936 states that “it is presumed that they are not vacant lots but private
property, owned by private estates, understanding that such a possession consists of the economic
exploitation of the land by positive acts of ownership, such as plantation or fields, the occupation
with cattle and others of equal economic importance.” L. 200/36, diciembre 30, 1936, DIARIO
OFICIAL [DO.] 23388, Article 1.
57 L. 9/89, enero 11, 1989, DIARIO OFICIAL [D.O.] 38650, Chaps. 1 (planning of municipal
development), 2 (public space), and 3 (acquisition of property by voluntary selling or expropriation).

186 D. Bonilla
objectives was regulating the expropriation of urban property not meeting its social
function.58 Therefore, Law 9 develops the concept of property as a social function that
appears in Article 26 of the Constitution (amended by Legislative Act 1). However,
the Congress that passed the law did not even mention Article 669 of the Civil Code
or the first paragraph of Article 26 of the Constitution, which define property as an
individual right. Congress did not address the contradiction between the two concepts
of property that coexisted in the legal system.
It is not surprising that a complex legal order such as the Colombian one would
have some contradictions. Among other reasons, the enormous number of norms
that make up the system and the ideological differences among legislators can easily
generate these failures of legislative technique. In fact, the legal systems include
institutional arrangements that allow for solving these contradictions. One of them
is judicial review. This power allows the courts to contribute to maintaining the
coherence of the legal system. Nevertheless, the Colombian Supreme Court did not
fulfill this role in relation to the property system that was dominant between 1936 and
1991. The Supreme Court, which had judicial review powers, ruled on issues related
to the social function of property ten times.59 In its case law, the Court developed
the concept of property as a social function and protected the powers of the state
to regulate and restrict the right to property. However, the Supreme Court has not
articulated an interpretation that would eliminate the contradictions in the property
system in any of the rulings. In its case law, the Supreme Court simply recognizes and
reproduces those contradictions. Two rulings are particularly important on this issue.
The first is the decision of August 11, 1988 in which the Supreme Court asserted
the constitutionality of Article 669 of the Civil Code.60 The Court recognized the
incompatibility of the concepts of property as a right and property as social function
in this ruling. However, it stated that the adverb “arbitrarily,” which qualifies how an
owner can use her property, does not violate Article 26 of the Constitution, which
established the social function of property. In this respect the Court indicated,

59 Corte Suprema de Justicia [C.S.J.] [Supreme Court], mayo 20, 1936, M.P: Eduardo Zuleta Angel
(principle of good faith and the exercise of rights); Corte Suprema de Justicia [C.S.J.] [Supreme
Court], diciembre 12, 1936, M.P: Eduardo Zuleta Angel (principle of good faith and contracts);
Corte Suprema de Justicia [C.S.J.] [Supreme Court], febrero 21, 1938, M.P: Arturo Tapias Pilonieta
(abuse of rights and expropriation); Corte Suprema de Justicia [C.S.J.] [Supreme Court], marzo 10,
1938, M.P: Juan Francisco Mujica (social function of property and unconstitutionality of civil law);
Corte Suprema de Justicia [C.S.J.] [Supreme Court], marzo 24, 1939, M.P: Ricardo Hinestrosa Daza
(abuse of rights in civil law; explicitly cites Duguit); Corte Suprema de Justicia [C.S.J.] [Supreme
Court], marzo 24, 1943, M.P: Anibal Cardozo Gaitdn (Law 200 of 1936, unproductive lands and
the social function of property); Corte Suprema de Justicia [C.S.J.] [Supreme Court], septiembre
14, 1989, M.P: Jaime Sanin Greiffenstein (examines constitutionality of Law 9 of 1989); Corte
Suprema de Justicia [C.S.J.] [Supreme Court], septiembre 28, 1989, M.P: Dídimo Páez Velandia;
Corte Suprema de Justicia [C.S.J.] [Supreme Court], noviembre 9, 1989, M.P: Fabio Morón Díaz;
and Corte Suprema de Justicia [C.S.J.] [Supreme Court], noviembre 9, 1989, M.P: Jairo Duque
Perez.
60 Corte Suprema de Justicia [C.S.J.] [Supreme Court], Sala. Plena agosto 11, 1988, M.P: Jairo
Duque Perez.
There is no doubt that in the text of the Constitution the individualist theory is discarded and
a thoroughly social content is given to ownership, which allows the law to impose limitations
to situate it in this way, to serve community interest and social solidarity, being therefore
illicit those acts involving abnormal exercise of that right, or contrary to the economic or
social purposes thereof, or those who tend to be or are determined by the desire to harm
others without any real interest for the owner ….
[However] … [t]he arbitrary qualifier, which is given to the norm of the right to property
[in Article 669 of the Civil Code] in question, is tempered by the same disposition for the
prohibition by which in its exercise violates the law or the rights of others, all of which
implies that it is not an absolute power as noted, and should thus be marked within the limits
the legislature may specify. Note also that the meaning of the adverb “arbitrarily” should be
understood as that of “arbitrio” [discretion], i.e., according to the Dictionary of the Royal
Academy of Language, “power that man (in this case the holder of the right) has to adopt
a resolution with preference to another” and not that of the abuse that could result from a
cursory reading of Article 669 of the civil code.61
Surprisingly, after recognizing the Constitution’s commitment to the concept of

property as function, the Supreme Court upheld the constitutionality of Article 669
of the Civil Code, appealing to the dictionary of the Royal Academy of Language
to state that the word “arbitrio” (discretion) could be differentiated from a common
understanding of “arbitrarily.” In doing so, the Court lost sight of the conceptual
problem it faced. There is no difference between leaving the use of property to the
“discretion” of the property owner and permitting him or her to use it “arbitrarily.”
Ultimately it is the will of the owner that determines what should be done with her
property. The individual using “discretion” may decide to use the asset “arbitrarily.”
In both cases, of course, individual autonomy has limits. The point is that these limits,
from the perspective of the classical liberalism that supports the Civil Code, are
external. Yet, from the perspective of the concept of property grounded in solidarity,
the problem is not that the owner has a right to use his good with discretion and
that the legislature in turn has the right to impose restrictions on ownership. The
problem is that property as a social function imposes obligations on how an owner
may use her property even if it does not adversely affect third parties. Property has
internal limits. The owner, in this way, does not have an individual right over his
or her good. The owner fulfills a social function. The Supreme Court thus did not
realize that the conflict examined is not semantic and cannot be resolved by referring
to the dictionary.
The second ruling is that of September 14, 1989. In this decision, the Supreme
Court declared constitutional the power that Law 9 of 1989 gave the government to
expropriate urban property not complying with its social function.62 In the ruling,
61 Ibid.
62 Corte Suprema de Justicia [C.S.J.] [Supreme Court], september 14, 1989, M.P: Jaime Sanin
Greiffenstein. This decision reinforced principles that the Court had articulated in its ruling of
December 3, 1937. There, the Court said that
this criterion based on the double interest, social and individual, the laws impose new rational
limits every day to the arbitrary exercise of the absolute right of ownership, as had been
established in the old definition from the civil code, and thus may require the owner to
cultivate them, as the title of ownership carries the implicit obligation to use one’s right to
188 D. Bonilla
the Court recognized the origin and existence of the contradiction in the property
system but did not resolve it. In this regard the Court said,
It is well known that the Legislative Act No. 1 of 1936 introduced in Article [26] of the
Constitution the concept that “property is a social function that implies obligations.” As
argued in the process of the constitutional reform, it might have been better to express that
property is a right that has a social function, which fits with the natural law theory that guided
the drafting of the National Constitution of 1886, instead of opting for Duguit’s thesis, so
in vogue in the thirties, that sought to reduce rights to social functions. In this case, though,
adopting either philosophical orientation leads to the same conclusion: property must be
used for a social purpose and not merely for the benefit of the individual property owner.63
The concrete solution to the case may be the same, as the Supreme Court suggests,
but its basis varies considerably. The fact that the Court did not even attempt to
articulate an interpretation of the Constitution and the law that would have resolved
the contradiction is remarkable since the ruling highlights the influence that the ideas
of Duguit had in transforming the Colombian property system in 1936. The Court,
the legislators, and the executive of 1936 all knew Duguit’s work and were aware
of the differences between the concepts of property as a right and property as social
function.64 For Duguit, property as a right and property as social function are two
incompatible concepts (Duguit 1975). Duguit’s work challenges the individualist and
natural law concept of property that has prevailed in the continental legal tradition
(Mirow 2010). To Duguit, the main sources of this conception of property are Article
544 of the Civil Code of Napoleon and the French Declaration of the Rights of Man
of 1789 (Duguit 1975, 172). The first defines property as an individual, subjective,
and nearly absolute right; the second, as a natural right.
perform a social activity, in the sense of solidarity that leads to the growth of general wealth
and the common good (Corte Suprema de Justicia [C.S.J.] [Supreme Court], Sala. Plena
diciembre 3, 1937, M.P: Hugo Palacios Mejia).
Similarly, in the ruling of March 10, 1938, the Court said, “Under Article 31 of the Constitution,
which assigns property a social function, private property has been relativized among us. In this
sense it is no longer an absolute right, i.e., legally unassailable, as originally consigned in our
civil code” (Corte Suprema de Justicia [C.S.J.] [Supreme Court], marzo 10, 1938, M.P: Ricardo
Hinestrosa Daza).
63 Corte Suprema de Justicia [C.S.J.] [Supreme Court], septiembre 14, 1989, M.P: Jaime Sanin
Greiffenstein.
64 In the debate of November 20, 1936, Senator Rodriguez Moya affirmed:
The term “social function of property,” rather than being interpreted as understood by lib-
eralism, in the sense that the exercise of private ownership implies social burdens, more or
less substantial, without being eliminated, is understood by the supporters of the project as
the disappearance of the right, and substitution with a duty, in whose compliance the citizen
has the protection of state powers, to the extent that it fulfills it, according to outdated and
impractical theory, in the democracy of Auguste [Comte] and Léon Duguit (Martinez 1939,
226).
Although Senator Rodriguez Moya was part of the Liberal Party, he decided to vote against the
bill because it violated the values of classical liberalism. (Martinez 1939, 265–266).
For Duguit, this concept of property is based on a poor description of human

beings. “The isolated and independent man is pure fiction,” (Duguit 1975, 178)
he wrote. An adequate description of social reality makes man’s interdependence
evident, not his individualism. Human beings have similar and different needs and
need to cooperate in order to satisfy those needs. For Duguit, solidarity is a fact, not
a doctrine or principle (Duguit 1975, 181). Interdependence, which for Duguit is a
synonym for solidarity, constitutes the social structure. Similarly, it is the source of
social cohesion. For Duguit, individual needs are satisfied through the social division
of labor. Every human being has a function in society. Otherwise, “it would result in
disorder or at least social harm” (Duguit 1975, 181). Thus, for Duguit, property should
not be thought of as a right having only external limits. Property must be defined
through the principle of solidarity and therefore as a social function. Consequently,
property as a social function imposes obligations on the owner regarding her use
of property (Duguit 1975, 179). Property has internal limits. The owner must make
productive use of her assets. Assets should be at the service of society. By property’s
operation, the owner creates economic and social benefits that contribute to satisfying
the needs of the members of the political community.
Duguit also redefines property as a social function by criticizing the category
“subjective right” (Duguit 1975, 175). For Duguit, this category, and its intimate
connection with property, is another example of the metaphysical character of the
continental legal systems. From his perspective, the idea that having a right means
that a third party has a corresponding duty is problematic. The notion of a right-duty
implies the meeting of two wills in which one, stronger than the other, is imposed.
For example, my subjective right to property implies the duty of third parties to
refrain from using it without my permission. The notion of a subjective right there-
fore implies familiarity with the nature of the will, a standard to measure it, and a
means to implement it. Nevertheless, for Duguit, although we can know its external
manifestations, we cannot know “the will.” It cannot be known empirically. Hence,
“the notion of a subjective right is found [to be] totally ruined … ” (Duguit 1975,
175). The right must be based on facts, not on metaphysical entities we cannot access
through the scientific method.
Thus Duguit’s criticism of the right to property is based on a commitment to
both positivism and structural functionalism. Auguste Comte (Duguit 1975, 176)
and Emile Durkheim (Duguit 1975, 182) are the sources of the theory of property as
social function. Property as a right and property as social function are contradictory.
Consequently, the contradictions running through the second legal system of property
in Colombia’s recent history cannot be resolved, as the Supreme Court attempted, by
appealing to the dictionary. The argument that the Civil Code and the Constitution
are not in conflict because the adverb “arbitrarily” used in Article 669 of the Civil
Code really refers to the owner’s use of “discretion” is useless. The Supreme Court
began with an inadequate description of the problem it sought to solve.
However, despite the theoretical contradictions, both the lawmakers of 1936 and
1989 sought to attack the classical liberal concept of property in the Colombian legal
190 D. Bonilla
order.65 The legislature of 1936 wanted to replace the concept of property established
in the Constitution of 1886 with the concept of property as a function. In a message
to Congress in 1935, to promote the enactment of Act 1, President López Pumarejo
said:
Property, as understood by the government, is not based solely on the registered title but
also has its basis in the social function it plays, and possession consists in the economic
use of land through the positive acts of those given the right to ownership, such as planting
or sowing, the raising of cattle, the construction of buildings, enclosures and other equally
significant things … For the government the fundamental problem of land is economic use,
and considers that titles to private property must be clarified and justified before society,
linking work to the land, or make way for the colonization of uncultivated areas that cannot
continue being indefinitely sterile reserves, to the expectation of distant recovery which
would arise from circumstances beyond the owners’ efforts (Martinez 1939, 14–15).
Similarly, Minister Dario Echandia, who presented the bill for Legislative Act 1
to Congress, summarized the purposes of constitutional reform as follows:
As you see, honorable Representatives, the project replaces the excessively individualistic
conception of private rights that characterizes the current Constitution, with another that
considers that individual rights must be exercised as a social function and should be limited
by the public convenience. The private right as a social function as opposed to the absolute
private right: such is the ultimate rationale of the project that the government submits for
your consideration (Mejia and Velasquez 1982, 162).
Finally, the legislature of 1989 wanted to consolidate the changes that had been
made by Legislative Act 1 and Law 200 in the urban context. One of the main
objectives of urban reform was to control owners protected by the classical liberal
concept of property who did not use their property while waiting for housing market
prices to improve. Law 9 of 1989 consolidated property as a social function, which
was already part of the Colombian legal order, by having its sight set on urban
properties in the country.
However, the three legal norms are part of a broader political project. Law 200,
Legislative Act 1, and Law 9 were key instruments for the consolidation and devel-
opment of the liberal interventionist state in Colombia.66 Interventionist liberalism
was constitutionalized with the election of the Liberal Party in 193467 and the com-
65 Opposition to the project on the part of the conservative party was clear. Esteban Jaramillo, former
Minister of Finance, affirmed: “[With the reform] an attack was carried out on religion, the family,
against honor, against property and against the dearest affections born of man … the fundamentals of
the country’s secular organization … have been threatened by destructive revolutionary tendencies”
(Londono 1981).
66 Law 9 was a key tool for developing the Colombian state’s commitments, acquired in 1936, to
the principles of distributive justice and solidarity. Indeed, after the interventionist state was made
constitutional in 1936, the legislature issued a number of legal norms that gave the state power to
intervene in areas as diverse as telecommunications, the family, and the export and import of goods
and services. However, Law 9 is of particular importance in this process in that it gives the state
powers to intervene in a key area for any state committed to the material equality of its citizens: the
ownership of urban land.
67 The government of López Pumarejo was the second government of the period known in Colombia
as the liberal hegemony (1930–46). The first was that of Olaya Herrera (1930–34) (Bushnell 1993,
181–200).
mitment of President López Pumarejo to consolidating a strong interventionist state

that would contribute to creating a fairer society in Colombia. Prior to Legislative
Act 1 of 1936, the Colombian government had certainly intervened in the economy.
The state often intervened in the economy between 1886 and 1936 to protect Colom-
bian products (Gonzales 2007, 175–180). However, this intervention ran counter to
the classical liberal principles supporting the Civil Code’s and the Constitution of
1886’s regulation of property. With the constitutionalization of the interventionist
state in 1936, the Colombian state was transformed from a minimally intervention-
ist state on paper and a moderately interventionist role in practice to a continuous
and systematic interventionist state on paper and in practice. The political project
of López Pumarejo gathered not only the ideas of Duguit and French solidarism on
legal matters, but also the ideas advocated by John Maynard Keynes in economics
and Franklin D. Roosevelt in politics (Marino 1996, 60).
The consolidation of the interventionist state in Colombia is not a coincidence.
The liberal interventionist state was useful for the Colombian political elites of the
1930s–1940s. This type of state gave them the tools to address the impacts of the
economic crisis of 1929, facing political challenges generated by the emergence of
the working class in Colombia and confronting the notable levels of poverty and
inequality facing the country. The interventionist state was a convenient mechanism
for the elites to address some of the needs of the subordinate classes, containing the
influence of the leftist parties that represented them and protecting their own interests
at the same time. The interventionist state became a good strategy for maintaining
the political and economic stability of the fragile Colombian liberal democracy. Of
course, this did not mean that López Pumarejo’s government was not truly committed
to liberal interventionist ideas. It meant only that his government’s liberal reform was
both normative and strategic (Villa 1987, 154–159).
Property as a social function played a fundamental role in the political project
of the consolidation and development of the interventionist state in Colombia. The
replacement of individualist property with property as a social function aimed to
advance a profound redistribution of rural land in the country. The land reform
promoted by the Revolución en Marcha had the goal of expropriating the large
unproductive estates in Colombia, allowing the peasant masses access to land and thus
negating one of the primary causes of inequality and conflict in Colombia: the unequal
distribution of land (Marino 1996, 48–54). This process was furthered by Law 9 of
1989. The urban reform law was designed and promoted by the liberal government of
Virgilio Barco (1986–90). In a context where the actions of the interventionist state
had become the rule, the government of President Barco articulated a legal strategy
for the state to redistribute urban land and the benefits generated by its operation.
Thus, for the political project that sought to consolidate and expand the inter-
ventionist state in Colombia, the reasoning behind property as a social function in
Duguit’s work was irrelevant. For López Pumarejo and Barco, what was relevant
to Duguit’s theory was not the idea of interdependence as a social fact, but rather
its relationship with the social division of labor or the objections to the metaphysi-
cal character of the concept of a subjective right. The political project of these two
liberal Presidents was not a commitment to Durkheim’s social theory or Comte’s
192 D. Bonilla
positivism. Duguit was relevant to this political project in that he provided the con-
ceptual tools to challenge the classical liberal concept of property and to justify the
state’s intervention in unproductive lands. Thus, what the Colombian Congress did
with Legislative Act 1, Law 200, and Law 9 was a reinterpretation of the liberal right
to property. The right to property, understood via the concept of “social function,”
implies that owners have internal and external obligations. The owner must use her
good so that it generates benefits for the political community. In particular, an owner
must put her property in production in a way that generates economic and social
returns that can benefit the community. For the liberal majorities in 1936 and 1989,
property was not really a social function. Property was an individual right that has a
social function.
In this second property system, however, the autonomy of the owner was rec-
ognized and respected. Property was a form through which individuals expressed
their will, and this form allowed them to materialize their life plans. Nevertheless,
since Colombia was—and remains—an unequal society, the Congresses of 1936 and
1989 affirmed that property should be understood through the principle of solidar-
ity. Consequently, in this new property system, solidarity limited the autonomy of
individuals. However, solidarity was not understood in this context as a social fact
but as a principle of political morality. It referred to the duties that people have to
support other members of society. Similarly, this property system was committed to
equality from both formal and substantial standpoints. The issue was not only that
all owners should be equal before the law but also that the state must act to ensure
that all citizens, particularly the poorest, can become owners. The state must inter-
vene in the economy for redistributive purposes. More specifically, in this context,
it should expropriate all rural and urban properties not being used productively by
their owners. It should expropriate all property that does not meet the social func-
tion of property in a political community committed to the values of interventionist
liberalism.
Now, recognizing the objectives of the political project seeking to strengthen
the interventionist state in Colombia and clarifying the use of Duguit’s theory of
property as function does not remove the contradiction between property as a right
and property as social function at the heart of Legislative Act 1. Nor does it obviate
the contradictions that the Legislative Act created when it preserved Article 669
of the Civil Code or issued Laws 200 of 1936 and 9 of 1989. Making the policy
objectives of the liberal interventionist project explicit did not obscure the fact that
the Supreme Court, which could have contributed to resolving these contradictions,
did not do so. The second period in the recent history of Colombia’s right to property
is then structured around a set of five conceptual oppositions: property as a right-
property as social function; individualism-solidarity; limited intervention-general
intervention; private-public; and Constitution as political program-Constitution as
norm. The first components of each of these oppositions come from the classical
liberal property system that was established with the Constitution of 1886 and that
survived the reform of 1936 in the Civil Code and in the first paragraph of Article
31 of the Constitution. The second components, with the exception of the category
“Constitution as norm,” entered the Colombian legal order with Legislative Act 1,
Law 200, and Law 9.
In the two property systems, the separation between the public sphere and the
private sphere was maintained. The first was still the realm of justice; the second,
the realm of morality. However, in the liberal interventionist property system, the
boundary between these two spheres shifted. The state became entitled to intervene
in decisions made by the owner, even if those decisions did not affect third parties.
Furthermore, the state’s intervention in the right to property was only one of the many
areas where it acted for purposes of distributive justice and the material equality it
is required to implement. The individual to whom the interventionist state refers is
both abstract and concrete. The state must protect the rights of every individual to
make decisions about his or her property, but is also obliged to intervene to ensure
that people, flesh and blood citizens, have access to property.
Similarly, the subject of the right to property in classical liberalism and interven-
tionist liberalism remains an autonomous individual. Property is still a means for the
articulation and realization of an individual’s life plan. In the second model, however,
the individual is not an isolated subject. The principle of solidarity. The subject of the
right to property has positive obligations to other members of society. He must not
only refrain from adversely affecting the rights of others. Understood not as a social
fact but as a principle, solidarity also requires him to use his property productively.
The right to property has a social function; it is not just an individual right limited
by the rights of others. The subject is a social being, not a monad coexisting with
other monads in common physical space.
Finally, this second property system coexisted with a thin concept of the Constitu-
tion. The Constitution was still conceived as a political project that must be developed
by the legislature in order to be effectively implemented. The law remained supreme
in this second period of the recent history of property in Colombia. Civil law, or the
Civil Code in particular, was the core of the legal system. The relationships between
individuals, typical of the private sphere in which subjects construct their life plans
and in which the market functions, were the fundamental reference points for the
legal order. The Constitution did not control the Civil Code. The code dominated
the Constitution. Hence the liberal interventionist property system has had many
obstacles to acceptance in Colombian legal culture. The classical liberal conception
of property located in the Civil Code has dominated the legal and political imagina-
tion of Colombians. For most citizens, property remains a nearly absolute individual
right. Colombian legal culture only moved toward a dense concept of the Constitution
with the adoption of the Constitution of 1991. Nevertheless, the debate generated by
the case law of the Constitutional Court seeking to constitutionalize the private right
demonstrates the challenges inherent in consolidating a concept of the Constitution
as the supreme norm with direct and immediate application in the country’s legal
culture (Pérez and Martínez 2008).
194 D. Bonilla
8.4 The Liberal Interventionist Property System

(1991–2011)
The third period in the recent history of property in Colombia is structured around the
Constitution of 1991 and the Constitutional Court’s case law on property.68 Article 58
of the Constitution reiterates that property has a social function, that the state has the
right to expropriate property for reasons of public utility as well as social interest,
and that the state has an obligation to protect rights to justly acquired property.69
However, the Constitution also indicates that property has an ecological function,
that the state has the duty to promote associational and collective forms of property,
and that the state may expropriate property, whether by judicial or administrative
means.70 Thus, although the Constitution of 1991 includes important new elements
in the property system, it also reproduces the contents of Article 10 of Legislative
Act 1 of 1936, which in turn reproduced the contents of the Constitution of 1886.
The second and third periods in the recent history of property in Colombia are thus
cumulative.71 They do not replace the previous system, but transform it in part. In
its classic and interventionist versions, liberalism remains constant under the legal
framework regulating property in Colombia.72
In this way, and in the Civil Code that remained in effect after the issuance of the
Constitution of 1991, the contradictions of the second property system are preserved
in the third. One important difference between the two systems, though, is that the
concept of property as a social function, set out in Article 58 of the Constitution of
1991, is intertwined with three key elements in the structure of the dogmatic part of
the Constitution: the principle of solidarity, the definition of the Colombian state as a
Social State of Law, and the principle of the supremacy of the Constitution. These are
not marginal differences. The Constitution establishes in its first article that Colombia
68 Law 388 of 1997 amended Law 9 of 1989. L. 388/97, julio 24, 1997, DIARIO OFICIAL [D.O.]
43091. Nevertheless, these changes did not affect the core elements of the social function of the
right to property as articulated in Law 9.
70 Ibid.
71 The proposal presented by Jesús Pérez González-Rubio to the National Constituent Assembly
illustrates the continuity between the two property systems:
Free enterprise has its foundation in private property. It is the cornerstone of the economy.
Hence the previous Constitution and the new one guarantee it as a right; but it can only be
justified as such in the mind of the owner to the extent that it fulfills a social function. It is an
idea expressed with the following phrase from 1936 and now repeated: “Property is a social
function that implies obligations” (Gaceta Constitucional No. 113, 29).
72 Article 58 of the Constitution of 1991 indicates,
Private property and the other rights acquired in accordance with the civil laws are guaranteed,
which cannot be ignored or infringed by subsequent laws. When the application of a law
is a “social State of law” and recognizes solidarity as one of the principles underlying
the Colombian State.73 The fourth article states that the Constitution is the supreme
norm of the legal system.74 Thus, property as a social function is not a concept isolated
in the Constitution. It is a significant part of the institutional machinery created by the
National Constituent Assembly of 1990. Property as a social function became a key
tool for the strong interventionist state established in the Constitution of 1991 to fulfill
its objectives in terms of redistributive justice. This definition and these principles
also play a key role in the case law of the Constitutional Court, which resolves the
contradictions of the property system. The case law of the Constitutional Court forms
the second central difference between the second and third property systems.
In the past twenty years, the Constitutional Court has established a consistent
line of case law in which the concept of property as a social function is developed
and protects the powers of the state to enforce compliance by the owners. In a set
of ten rulings on abstract judicial review,75 the Court has protected the right of the
state to limit the right to property, given its social function in matters as diverse as
passed on account of public utility or social interest should result in a conflict between the
rights of persons and the necessity recognized [by the law], the private interest must concede
to the public or social interest.
Property is a social function that implies obligations. As such, an ecological function is

inherent to it.
The State will protect and promote associative and collective [solidarias] forms of ownership.
For reasons of public utility or social interest defined by the legislator, there may be expropria-
tion by means of a judicial sentence and prior indemnification. The latter will be determined
in consultation with the interests of the community and the affected [party]. In the cases
determined by the legislator, this expropriation may be pursued by administrative means,
subject to subsequent contentious administrative action, including with respect to price.
Constitución Política de Colombia, Article 58 (A I Vellvé Torras & J J Ruchti translation, 1991).
73 Ibid.Article 1. Article 2 of the Constitution states, “The essential goals of the State are: to serve
the community, to promote the general prosperity, and guarantee the effectiveness of the principles,
rights and duties consecrated in the Constitution ….” (A I Vellvé Torras & J J Ruchti translation,
1991).
74 Article 4 of the Constitution states, “The Constitution is the norm of norms. In any case of
inconsistency between the Constitution and the law or other legal norm, the constitutional provisions
will be applied” (Constitución Política de Colombia, Article 4).
75 The Court makes reference to the social function of property in just two rulings on the concrete
control of constitutionality: Corte Constitucional [C.C.] [Constitutional Court], agosto 18, 1998,
M.P: Alejandro Martinez Caballero, Sentencia T-427/98, and Corte Constitucional [C.C.] [Consti-
tutional Court], julio 12, 2001, M.P Alfredo Beltrán Sierra, Sentencia T-746/01. While the right
to property is not a fundamental right, it cannot be protected by use of the action of tutela. The
action of tutela allows for protecting the fundamental rights of individuals from the improper acts or
omissions of public officials. In the two cases of tutela mentioned above, the Constitutional Court
ruled on the right to property by making use of the so-called doctrine of connectedness. The Court
has held that in cases of tutela, an economic and social right can be addressed when it has a direct
connection with a fundamental right.
196 D. Bonilla
the environment, mining, and the distribution of urban land.76 In these rulings, the
Court defended a standard interpretation of the social function of property. For the
Court, it was clear that the concept of property as social function was introduced
into the Colombian legal order with Legislative Act 1 of 1936.77 Similarly, it was
clear to the Court that in 1936, Congress and the National Constitutional Assem-
76 The ten rulings and issues they address are as follows: in the first ruling, the Constitutional Court
upheld the constitutionality of Article 296 of the mining code, which provides for the termination of
mining titles if they are not registered within one year after promulgation of the law. Corte Consti-
tucional [C.C.] [Constitutional Court], enero 18, 1993, M.P: Eduardo Cifuentes Muñoz, Sentencia
C-006/93. In the second, the Court upheld the constitutionality of the second article of Law 9 of 1989,
which requires that the plan of municipal development include regulations on the free mandatory
cessions to which builders are subject. Corte Constitucional [C.C.] [Constitutional Court], julio 29,
1993, M.P: Carlos Gaviria Díaz, Sentencia C-295/93. In the third, it declared constitutional Article
87 of Law 135 of 1961, which states that rural properties of less than three hectares may not be
subdivided. Corte Constitucional [C.C.] [Constitutional Court], mayo 5, 1994, M.P: Jose Gregorio
Hernández Galindo, Sentencia C-223/94. In the fourth, it upheld the constitutionality of Article 79
of 1988, which indicates that cooperatives cannot pursue profit while fulfilling a social function.
Corte Constitucional [C.C.] [Constitutional Court], diciembre 7, 1995, M.P: Fabio Moron Díaz,
Sentencia C-589/95. In the fifth, it upheld the constitutionality of Article 3 of Law 48 of 1882,
Article 61 of Law 110 of 1912, and Article 65 of Law 160 of 1994, which define vacant public lands
as inalienable. Corte Constitucional [C.C.] [Constitutional Court], diciembre 7, 1995, M.P: Carlos
Gaviria Díaz, Sentencia C-595/95. In the sixth ruling, it declared Article 669 of the Civil Code to be
unconstitutional. Corte Constitucional [C.C.] [Constitutional Court], agosto 18, 1999, M.P: Carlos
Gaviria Díaz, Sentencia C-595/99. In the seventh, it declared that Article 217 of the national police
code, which requires all owners to maintain the fronts of their houses or buildings, is constitutional.
Corte Constitucional [C.C.] [Constitutional Court], junio 26, 2002, M.P: Marco Gerardo Monroy
Cabra, Sentencia C-491/02. In the eighth, it upheld the constitutionality of the law governing the
forfeiture of property. Corte Constitucional [C.C.] [Constitutional Court], junio 5, 2003, M.P: Jaime
Cordoba Triviño, Sentencia C-740/03. In the ninth, it confirmed the constitutionality of Articles 86,
136, and 220 of the injunctive administrative code, which regulate the payment of indemnification
that the state must provide when it permanently occupies an individual’s property. Corte Consti-
tucional [C.C.] [Constitutional Court], september 7, 2004, M.P: Jaime Araújo Renteria, Sentencia
C-864/04. In the tenth, it declared that Article 13 of Law 2 of 1959, which prohibits the sale of
private lands that have been included in national parks, is constitutional. Corte Constitucional [C.C.]
[Constitutional Court], marzo 15, 2006, M.P: Rodrigo Escobar Gil, Sentencia C-189/06.
77 In a 2003 ruling, the Court discussed the 1936 constitutional reform:
The reforms introduced to the system in Article 10 of Legislative Act No. 1 of August 5,
1936 were substantial: (i) First, the right to private property was expressly referenced. (ii)
Second, the motives by which social interest prevails over private interest were incorporated.
(iii) Third, a mandate was enacted by which “Property is a social function that implies
obligations.” (iv) And fourth, the legislature was empowered to order, for reasons of equity,
expropriation without previous indemnification. These changes allowed for the definitive
consolidation of Colombian constitutionalism, the foundations of the social state-based on
solidarity, on the rationalization of economic relations, on the exercise of rights depending
on the social context in which they are recognized, and committed to satisfying the primary
needs of individuals. Hence, the nucleus of the individual subjective right par excellence—
property—was affected in the Constitution, by displacing the arbitrary rule exercised over
bly took this concept from Duguit.78 In these decisions, the Constitutional Court
recognized that property as a social function imposes internal limits on property.79
The Court indicated that the owner has an obligation to make productive use of her
property.80 Consequently, the state has the right to regulate the use of different types
of property to ensure that their social function is fulfilled.81 Similarly, the state has
the right to regulate the consequences of the owner’s breach of social obligations. As
a consequence, the first major contribution of the Court on this matter was not on the
the property by its use for the social demands of generation of wealth and social welfare
(Corte Constitucional [C.C.] [Constitutional Court], agosto 28, 2003, M.P: Jaime Cordoba
Triviño, Sentencia C-740/03).
78 On this point, the Constitutional Court has stated,
The Court does not believe that, to resolve the lawsuit, an analysis should be done on the
origins and development of the right to property through the centuries, given the existence
of varied case law and doctrine on the subject, it was sufficient to remember that the concept
of property has undergone change, as in principle it was seen as a natural and absolute right,
then closely linked to the notion of freedom, due to which Sieyes affirmed that freedom
was a property in itself. Subsequently, and with the passage of time, more credence was
given to the thought of those who argued that property must yield to the social obligations of
State and the community at large, leading to the thesis of property as a social function. Léon
Duguit, whose thought greatly influenced the constitutional reform of 1936, an influence
that survives in the notion gathered by the present Constitution, referred to the character of
the property in these terms … (Corte Constitucional [C.C.] [Constitutional Court], julio 29,
1993, M.P: Carlos Gaviria Díaz, Sentencia C-295/93).
79 The Constitutional Court has also stated that,
The social function of property is incorporated into its contents to impose obligations on the
owner for the benefit of society. In other words, the social content of the obligations internally
limits the individual content of the powers of the owner, according to Duguit’s concept of
property as function. In the case of vacant rural land, this social function is translated into an
obligation to exploit it economically and to designate it exclusively for agricultural activities,
not to use the land if it is designated as a reserve or to conserve renewable natural resources,
etc. In one word, the social function is that the right to property must be exercised not to harm
but to benefit society, designating or using it according to the collective needs and respecting
the rights of others (Corte Constitucional [C.C.] [Constitutional Court], diciembre 7, 1995,
M.P: Carlos Gaviria Díaz, Sentencia C-595/95).
80 Ibid.
81 The Constitutional Court has said:
In this order of ideas and defending the concept of social function, the legislator may impose
on the owner a number of restrictions on ownership rights for the sake of preserving social
interests, respecting, however, the core of the right itself, relative to the minimum level of
enjoyment and disposition of a good that enables its holder to obtain economic benefits in
terms of value for use or exchange value to justify the presence of a private interest in the
property. This is why property is protected by the Constitution in accordance with the analysis
and the circumstances of each case, especially if found to be connected and related to other
specific fundamental rights. Given its social role, it should also be understood as a duty,
198 D. Bonilla
content given to the institution of property as social function, but on its systematic
and consistent application.
The second major contribution addressed how to confront the contradictions in
the legal system between property as a social function and property as a right. Two
rulings, which are complementary, are particularly relevant with respect to this point.
The first is the C-006 ruling of 1993, which precipitated the case law on property
as social function. In this decision, the Court undertook a thoughtful analysis of the
conceptual differences between the concepts of property as a right and property as
a social function. For the Court, the main difference lay in the type of limit that
each imposes on property.82 While the former imposes external limits, the second
imposes internal limits. In Colombia, the state must protect private property only
when it is being used productively. Similarly, in this ruling, the Court examined the
political and economic objectives that intersect with each concept of property. For
the Court, it was clear that the change in the property system that occurred in 1936
was directly related to the economic changes in Colombia in the first three decades of
the twentieth century. Similarly, it was clear to the Court that the political objective
of this change was related to the possibility of redistributing land in Colombia. In
this decision, the Court affirmed that property is a right that has internal and external
limits. In this regard, the Court says:
Economic and social development is ultimately responsible for the mutation of the concept
and the meaning that Colombian society has for and assigns to private property. Beginning
in the thirties, the laws enacted are inscribed under the marker of sociability as evidenced
by their texts and the copious case law that has dealt with them, constantly referring to
the categories of social interest and the social function of property. The estrangement from
the subjective matrix of the civil code is notorious and eloquently denounces a change in
the economic base and the very foundation of the right to property, which is preserved and
guaranteed, but by means of the constitutional principles of social interest and social function.
In this sense, the express involvement of the legislature in activities and important areas
from private property to social interest has allowed it to maintain expropriatory measures
to strengthen and facilitate programs of social and economic development, and to articulate
policies of distributive justice through these means. On their part, generally speaking, the
intrinsic linkage of private property to social function has sought to subordinate ensuring
the requirements of production and the generation of wealth.83
The second key ruling in the Court’s line of case law on property is C-595 of
1999. In this ruling, the Court declared part of Article 669 of the Civil Code to
be unconstitutional.84 More specifically, the Court declared the adverb “arbitrarily,”
as a formative and internal limit that commits owners to the duty of solidarity embodied
in the Constitution. … The legal configuration of property, then, can point either to the
suppression of certain powers, to their conditional exercise, or in some cases, the forced
exercise of certain obligations (Corte Constitucional [C.C.] [Constitutional Court], agosto
18, 1998, M.P: Alejandro Martínez Caballero, Sentencia T-427/98).
82 Corte Constitucional [C.C.] [Constitutional Court], enero 18, 1993, M.P: Eduardo Cifuentes
Muñoz, Sentencia C-006/93.

83 Ibid.
Sentencia C-595/99.
which described how the owner could use his good, to be unconstitutional. The
argument for this decision is divided into three parts. In the first part, the Court affirms
that the concept of property as a social function established in the Constitution limits
the autonomy of the owner.85 Therefore, the owner cannot use her property in any
way that she deems appropriate. The issue is not that the exercise of property has
external limits. Article 669 of the Civil Code indicates that the owner cannot use her
property in a way that violates the law or the rights of others. The issue is that Article
58 of the Constitution redefines the concept of property. The owner, by definition,
has obligations related to her property.86 Not only should the owner not use it in a
way that does not affect third parties, she also must use it productively.
In the second part of the argument, the Court explicitly recognized that the con-
cepts of property as a function and property as a right are contradictory.87 For the
Court, the notion of a subjective right was incompatible with the notion of a social
function. After making an analysis of Duguit’s theory, the Court affirmed that the
metaphysical character of the concept of a subjective right is irreconcilable with the
concept of social function based on social facts.88 The Court therefore recognized that
Article 58 of the Constitution contradicts itself. However, the Court also recognized
the utility of the concept of a subjective right and questions Duguit’s conclusion that
it is necessary to expel it from legal discourse.89 This argument is significant. The
Court recognized and understood the conceptual problem it faced.90 This argument
85 Ibid.
86 The Court stated:
Now, the entire theory of a subjective right was built, traditionally, keeping in mind the
patrimonial right type par excellence: property. Analyzed with Duguit’s criteria, the right
of ownership becomes a social function, which means that the owner is not a privileged
subject, as he had been until that point, but an official, which is to say, someone who should
manage that which he possesses as a function of social interests (which take prevalence over
his own), a possession that is only guaranteed, in the individual sphere, if the objectives of
collective benefit are met (Corte Constitucional [C.C.] [Constitutional Court], agosto 18,
1999, M.P: Carlos Gaviria Díaz, Sentencia C-595/99).
87 Ibid.
88 In this regard the Court says, “From [Duguit’s] sociological positivism a supposition of this nature
is repelled [that of the will], only understandable from a metaphysical perspective, incompatible
with the scientific analysis of the right. The conclusion, undoubtedly puzzling, is this: ‘Subjective
rights do not exist.”’ Ibid.
89 The Court indicated in relation to this point, “Reconciling the notion of acquired subjective rights
with that of social function of is a nearly impossible task … which highlights the difficulty created by
dispensing with such a useful conceptual tool (the subjective right) in both legislation and theorizing
about the law.” Ibid.
90 The Court affirmed:
What seems clear is that the advice of any careful reader of the transcribed article would
be incompatible with a highly individualistic stamp such as the one embodied in Article
669, particularly emphasized in the word arbitrarily, and the hermeneutic efforts made so
artificial as to be innocuous in distinguishing two meanings: capriciously, or according
to discretion, and opting in this context to attribute the latter meaning to the adverb. Both
200 D. Bonilla
contrasts with the one put forward by the Supreme Court in the 1988 ruling which
reviewed the constitutionality of Article 669 of the code.91 In this ruling, as noted
above,92 the Supreme Court considered this article to be constitutional because the
word “arbitrarily” actually signifies the “discretion” of the owner and is limited by
law and the rights of others. In the end, the Supreme Court considered that the social
function of property is an external limit that the legislature imposes on owners. The
social function is a line that, like the rights of third parties, the owner should not
cross. For the Supreme Court, there was therefore no conceptual difference between
property as a social function and property as a right.
In the third part of the argument, the Constitutional Court argued that the best
interpretation of Article 58 of the Constitution, which is contradictory, indicates that
property is a right that has internal and external limits.93 The legislature’s objective
was not to eliminate the notion of subjective rights from the Colombian legal system.
Congress’s objective was to redefine the right to property so it is understood that the
owner has an obligation to use her object productively. The Court, citing the paragraph
of Ruling C-006 of 1993 that appears above,94 makes an analysis of the political and
economic objectives for including the social function concept of property in the
Colombian legal order.95 In this analysis, the Court reiterates that this objective was
the redistribution of land in Colombia. In sum, what the Court affirms is that property
in Colombia is not a social function, as Duguit argued, but a subjective right that has
a social function. The text of Article 58 is inconsistent. However, a systematic and
teleological interpretation of the Constitution can solve this contradiction.
This third property system of Colombia’s recent history emerges from the consoli-
dation and expansion of interventionist liberalism resulting from the broad agreement
between liberal, conservative, and progressive forces in the National Constituent
Assembly for reshaping the Colombian political community in 1990. The NCA of
1991 was summoned to confront a deep political crisis in Colombia (Dugas 1993, 18).
This crisis was caused primarily by two failings: the state’s inability to curb the vio-
lence ravaging the country, and the existence of a corrupt, centralized, exclusionary,
and inefficient political system.96 For the populace that supported the constitutional
process, a radical change in the institutional organization of the state was needed
to respond to widespread violence generated by drug lords, guerrilla groups, and
options preserve the individualistic conception underlying the norm in question, incompatible
with the higher order provision incorporated in 1936, informed by a political philosophy
specifically constructed against individualism (Id).
91 Corte Suprema de Justicia [C.S.J.] [Supreme Court], Sala. Plena agosto 11, 1988, M.P: Jairo
Duque Perez.
92 See supra text accompanying note 61.
Sentencia C-595/99.
94 See supra text accompanying note 83.
Sentencia C-595/99.
96 On the history of the NCA, see Dugas, Sanchez and Ungar 1991.
paramilitary organizations (Febres-Cordero 1991, 118–122). It was widely believed

in the country that this drastic institutional change was necessary, moreover, to create
an open, effective, and decentralized political system, in which the interests of all
citizens would be represented. It was also thought that this political system should
be given broad powers to confront the profound injustices affecting a huge number
of Colombians. Consequently, the work of the NCA was structured around the fol-
lowing four issues: putting an end to violence, strengthening democracy, expanding
the Bill of Rights, and redefining the basic structure of the state (Dugas 1993).
With respect to the latter, the NCA decided that Colombia should be a Social
State of Law. For the NCA, it was clear that the state should be obligated not only to
protect the formal equality of citizens but also their material equality. The state should
therefore have the tools to intervene in the economy in a continuous and systematic
manner.97 A little over fifty years after being introduced in the Constitution with
Legislative Act 1 of 1936, the idea of an interventionist state in Colombia was well
recognized and accepted by the public.98 However, the constituent assembly of 1990
strengthened it when it defined the Colombian state as a Social State of Law. The
differences between the constitutional reform of 1936 and the Constitution of 1991
are substantial. In the first, Congress granted certain powers to the state to intervene
in the economy; in the second, the state, by definition, must intervene to contribute
continuously and in generalized fashion to realizing the objectives of material justice
to which Colombian society is committed. The idea of a strong interventionist state is
further reinforced in the Constitution of 1991 with the introduction of the principles
of solidarity and dignity into the Constitution. Article 1 of the Constitution indicates
that the Colombian state is based on solidarity and dignity. The purpose of the robust
interventionist state in Colombia, then, is to put the resources at its disposal to the
service of realizing these principles.
97 Article 334 of the Constitution states:
The general management of the economy will be under the responsibility of the State. The
latter will intervene, by mandate of the law, in the exploitation of the natural resources, in the
use of the soil, the production, distribution, use, and consumption of goods, and in the public
and private services in order to rationalize the economy with the purpose of achieving the
improvement of quality of life of the inhabitants, the equitable distribution of opportunities
and the benefits of development and the preservation of a healthy environment.
In a special manner, the State will intervene to give full employment to the human resources
and to ascertain that all the persons, in particular those with lower incomes, have effective
access to the basic goods and services. Also, to promote the productivity and competitiveness
and harmonious development of the regions.
Constitución Política de Colombia, Article 334 (A I Vellvé Torras * J J Ruchti translation, 1991).
98 Article 11 of Legislative Act 1 of 1936, which transformed the Constitution of 1886, stated,
“The State can intervene in the operation of industries or public and private companies through
legislation, with the objective of rationalizing the production, distribution and consumption of
wealth, or giving the worker the proper protection to which he is entitled.” Legislative Act 1/36,
agosto 5, 1936, DIARIO OFICIAL [D.O.] 23263, Article 11.
202 D. Bonilla
In this institutional machinery, property as a social function fits perfectly. The

regulation of property is essential to any political project that aims to reduce inequal-
ity.99 In a country like Colombia, moreover, this objective cannot be achieved without
confronting the problem caused by the historically unjust distribution of rural and
urban land and by the existence of a significant amount of unproductive land (Gómez
and López (unpublished), 6). A Social State of Law must recognize that the right to
property is not absolute, that owners are obliged to use their properties productively,
and that the state must intervene in the event that this does not happen (Gómez and
López (unpublished), 3–4). Consequently, in this third system, property is defined
based on the principles of material equality and solidarity. Indeed, the autonomy
of the owner continues to have considerable importance. Property is a fundamental
instrument for individuals to express and realize their life plans. Nevertheless, indi-
vidual autonomy is limited by the obligations that the owner has to the other members
of the political community. The use of property must recognize the social character
of subjects, as well as their interdependence. The stability, prosperity, and justice of
the political community depend on all members of the polity, certainly all owners.
Similarly, in this type of property system it is clear that autonomy is not exercised
in the abstract (Taylor 1991, 31–41). It is exercised within particular contexts that
determine the options available to the subjects, as well as their value (Taylor 1991,
31–41). These contexts are also directly related to the existence or absence of the
material conditions necessary for the exercise of autonomy. The owners, with the
productive use of their property, and the state, with its intervention, should help all
citizens to access the basic material conditions that they need to truly exercise their
autonomy. Thus, although the separation between public and private spheres is at the
core of this third property system, its boundaries become more porous. Property and
the market continue to be situated in the private sphere. However, the state has an
obligation to intervene in these matters to ensure the material equality of its citizens.
The Constitution is no longer a political program dependent on the will of legislators
for its development and potential application. The Constitution is the norm of norms
in the legal system, a norm that has immediate and direct application and that requires
that individuals comply with the social function of their property.
99 On this subject, members of the Constituent Assembly Arias and Marulanda state in the bill they
presented before the National Constituent Assembly,
A party that believes in the intervention of the State in the economy and that has popular
support can be found in this brief subsection we are addressing [“Everyone has a right to
access property … The State shall promote access to property, in accordance with the law
…”] and refers to the right of all people to access property, a legal source for acting on the
issue of redistribution, complemented by other legal pieces such as expropriation, in the terms
of this article and that will be explained subsequently (Gómez and López (unpublished), 2).
This volume gathers all the original documents about the right to property produced by the
National Constituent Assembly. See also Birry (1991); López (1991); Reyes (1991).
8.5 Conclusion
The three legal systems that define and regulate property in the recent history of
Colombia are structured around three liberal values: autonomy, equality, and solidar-
ity. However, each of these systems interprets and balances these values differently.
The first is a classical liberal system that is structured around the autonomy and for-
mal equality of owners. The second—a system with autonomy and formal equality
on the one hand, and solidarity and substantive equality on the other—is in tension.
The third is a system that gives priority to the principles of solidarity and substantive
equality over autonomy and formal equality. These systems of property are inter-
twined with the political struggles for the definition and control of the Colombian
state. The political programs of the Regeneration and Revolución en Marcha, as
well as the process to recreate the polity that was attempted with the 1991 Constitu-
tion, determined the characteristics of the right to property in each of the moments
analyzed in this Chapter.
Finally, the political and academic understanding of each of these systems of prop-
erty is strongly influenced by five conceptual oppositions: individualism-solidarity;
limited intervention-general intervention; private-public; Constitution as political
program-Constitution as norm; and property as a right-property as a social function.
The components of each of these oppositions intertwine with its ideological peers to
constitute the conflicting fields that have determined the way in which Colombians
think about property.
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Chapter 9
Tierra y Libertad: The Social Function
Doctrine and Land Reform in Latin
America
Thomas T. Ankersen and Thomas Ruppert
Abstract Latin America has been caught for centuries in a vicious cycle of land
consolidation and land reform; the issue perennially resurfaces since concentration of
land and associated resources results in conflict.’ Latin American nations are among
the world’s leaders when it comes to the inequality of land distribution. Land reform,
or agrarian reform, as it is more commonly referred to in Latin America, is hardly
a new phenomenon. As we will show, the need to develop a policy to redress the
consolidation of lands by a powerful few and redistribute it in the name of equity and
development has its pedigree in Greco-Roman times. In Latin America land reform
began in colonial times and has persisted through the present, resisted by elites who
benefited from the largesse of the colonial powers. In the colonial era, the land and
its resources was all the crown could offer to the conquistadors, colonial elites, and
to the church. As a result, the newly independent states immediately entrenched a
resistant, wealthy class of latifundistas, or large landed estate holders, setting the
stage for a legacy of revolution and attempts at land reform.
Keywords Social function · Land reform · Agrarian reform · Land tenure ·

Ecological function · Expropriation · Regulatory expropriation · Productive use ·
Allodial · Latifundio · Regalia · Encomienda · Repartimiento · Utilidad pública
This chapter is republished with the kind permission of the Tulane Environmental Law Journal
(Thomas T. Ankersen & Thomas Ruppert, Tierra y Libertad: The Social Function Doctrine and Land
Reform in Latin America, 19 Tul. Envtl. L.J. 69 (2006)). (http://scholarship.law.ufl.edu/facultypub/
277).
T. T. Ankersen (B)
University of Florida Joint Program in Environmental Law and Conservation Clinic, Gainesville,
FL, USA
e-mail: ankersen@law.ufl.edu
T. Ruppert
Florida Sea Grant College Program, Bldg. 803, McCarty Drive, PO Box 110400, Gainesville, FL
32611, USA
e-mail: truppert@ufl.edu

208 T. T. Ankersen and T. Ruppert
9.1 Introduction
To many, the term “land reform” in Latin America conjures up images of Ché Gue-
vara fighting an insurgency from the mountains of Latin America, of Emiliano Zapata
inspiring revolution in Mexico, and of Chico Mendes holding off bulldozers with bul-
lets to defend the rubber tapper movement in the Amazon rain forest. More recent
images include Comandante Marcos exhorting Mexicans to join yet another rev-
olution to redress poverty and landlessness in Chiapas, Venezuela’s Hugo Chávez
threatening to expropriate British cattle ranches for redistribution to peasant farmers,
and, from another region, Zimbabwe’s Robert Mugabe redistributing white farms to
land-poor black Africans against a setting of development desperation. These images
reflect nations and regions still held hostage by the concentration of land in the hands
of a few. While real property in the developed world may no longer hold uncontested
status as the most important resource a person can hold, it remains so in much of the
developing world. Latin America has been caught for centuries in a vicious cycle of
land consolidation and land reform; the issue perennially resurfaces since concen-
tration of land and associated resources results in conflict (Smiley 2002, 92). Latin
American nations are among the world’s leaders when it comes to the inequality of
land distribution (Mo 2003, 178, 181).1
Part II of this Article briefly reviews the history of land reform, with special
attention to Latin America. Land reform,2 or agrarian reform, as it is more commonly
referred to in Latin America, is hardly a new phenomenon. As we will show, the
need to develop a policy to redress the consolidation of lands by a powerful few and
redistribute it in the name of equity and development has its pedigree in Greco-Roman
times. In Latin America land reform began in colonial times and has persisted through
the present, resisted by elites who benefited from the largesse of the colonial powers.
In the colonial era, the land and its resources was all the crown could offer to the
conquistadors, colonial elites, and to the church. As a result, the newly independent
states immediately entrenched a resistant, wealthy class of latifundistas, or large
landed estate holders, setting the stage for a legacy of revolution and attempts at land
reform.
1 Mo gives the Gini coefficients a means to measure land inequality for East Asia, Latin America,
the Organization for Economic Cooperation and Development, and South Africa (Mo 2003, 181).
These show that Latin America has the most unfavorable Gini coefficient at 81.3%. For a more
precise breakdown of land inequality according to country, see Jazairy et al. (1992, 416–417). The
Gini coefficient is a measure of inequality in distribution. It ranges from zero to one; the closer to
one the value is, the greater the inequality (Thiesenhusen 1995, 9).
2 Land reform has been defined as “a change of the tenancy structure under the guidance of the state
and motivated by peasant pressure” (Sanchez 2003, 25). Another generally accepted definition is
that land reform means “the redistribution of property or rights in land for the benefit of the landless,
tenants and farm labourers” (Adams 1995). Agrarian reform is actually a much broader term than
just land reform and includes a plethora of “rural development measures, such as the improvement
of farm credit, cooperatives for farm-input supply and marketing, and extension services to facilitate
the productive use of the land reallocated” (Adams 1995, 1).
9 Tierra y Libertad: The Social Function Doctrine … 209
In Part III we discuss the legal doctrine that underpins most modern land reform in
Latin America, the “Social Function Doctrine.” Typically given constitutional status,
the Social Function Doctrine can also be found in some Latin American civil codes
and agrarian reform laws. When it is not expressly articulated, the doctrine is implicit
in the language and reinforced by jurisprudence. The Social Function Doctrine can
be traced to fundamentally different conceptions of the relationship between the
state, its subjects and real property in society. The modern Social Function Doctrine
emerged in its broadest context from the early twentieth-century writings of the
French jurist and political philosopher Leon Duguit, and posits that the legitimacy of
government originates in the social functions promoted by government action. While
this development reflects the rise of so-called “second-generation” human rights, we
also demonstrate that much deeper roots, from both pre-Colombian and colonial
times, predisposed many cultures in Latin America to view property as a means to
an end or a policy tool rather than an inviolable right of the individual against the
state. When applied to real property, the Social Function Doctrine operates to justify
a fundamentally distinct view of the role of property in society, and the rights and
obligations of the individual holding property. In this sense it can be distinguished
from related concepts, such as the “public use” doctrine, and its Spanish-language
analog of utilidad pública.. However, these distinctions have become blurred at times,
just as the doctrinal distinctions between common and civil law systems have blurred
over time.
Part IV discusses emerging issues that the Social Function Doctrine presents
in the contemporary policy environment, as well as its adaptation in the face of
new societal challenges. First employed as a tool to settle a rapidly diminishing
agricultural frontier (and a safety valve to release population pressure from the urban
landless), the Social Function Doctrine has had to adapt to incorporate the ecological
function of property, resulting in some intriguing regional jurisprudence. And as the
region’s mega-cities sprawl, there are indications that the Doctrine may find new vigor
in an urban context. Finally, the forces of globalization and international law present
special challenges as the philosophical underpinnings of the Doctrine confront efforts
to create regional free trade regimes and advance neoliberal policies.
9.2 Land Reform: The Legal-Historical and Sociopolitical

Context
The idea of land redistribution to address inequity can be traced to at least the ancient
Greeks (Cf. Wieling 1997).3 A contemporary discussion of land reform and the
pragmatic and philosophical bases for land reform benefits greatly by putting land
3 Notingthat in early Greek societies, the state frequently reapportioned land to take account of
changing demographics.
reform in its proper historical context; to accomplish this, we go back to ancient

Rome, and the foundations of modern western property law.4
9.2.1 Roman Origins5
The earliest Romans held land communally among various clans (Wieling 1997, 15).
Evidence suggests that this state of affairs held until at least the fifth century B.C.
(Wieling 1997, 15). when the second Roman king divided the common land among
the citizens (Wieling 1997, 20). During the early years of the Republic of Rome,6
internal struggles between the patricians (the social class with the political power and
most of the wealth) and the plebeians (the poor and disenfranchised that comprised
most of the population) occupied much of the energy of Rome (Nicholas 1962, 3).
Such struggles originated in part from the need for more agricultural land for both
food production and as a source of livelihood for Roman citizens and conquered
peoples.
Military campaigns to conquer new lands sought to solve such problems. Con-
quered lands were assigned the status of ager publicus, or property of the state
(Stephenson 1973, 10).7 In theory these lands were to be distributed to Roman citi-
zens lacking land. Instead, the wealthy and politically powerful class of citizens, the
patricians, ended up occupying much of the ager publicus before it could be legally
distributed to those lacking land (Wieling 1997, 20). The patricians successfully
occupied this land because Roman property law of the time only allowed the true
legal owner of land—i.e., the state in the case of ager publicus—to bring an action
to displace a possessor. The state, however, was composed of the same patricians
4 While the Roman model of property has often been lauded as the origin in the western tradition
of private property, even during Roman times property concepts were already considered issues of
public interest (van der Vyver 1985, 134).
5 Even prior to the Roman reforms, the Greeks went through early reform efforts (Tuma 1965,
20–27). However, information from the period is suspect, thus leading to uncertain value of analysis
of it except in the most general terms (Tuma 1965, 20). Still, in general terms, Tuma adduces
the evidence to indicate that in ancient Greece, economic changes resulted in concentration of land
ownership and the serfdom of many formerly free farmers, leading to demands for redistribution
of land (Tuma 1965, 21–23). Upon his election as archon, or chief magistrate, in 594 B.C., Solon
understood the potential danger of the growing unrest of the serfs (Tuma 1965, 23, 243). Solon
thus enacted reforms eliminating existing debts, eliminating serfdom, and eliminating the ability
to mortgage one’s freedom to secure a debt (Tuma 1965, 23). These and other reforms of Solon did
not substantially affect the distribution of land (Tuma 1965, 24). The failure of Solon’s superficial
reforms postponed but did not avoid revolution (Tuma 1965, 25).
6 Approximately from 510 to 367 B.C. (Nicholas 1962, 3).
7 Early additions to the land of Rome were incorporated into the city proper as ager romanus or
the public land of Rome (Stephenson 1973, 10). However, after a certain point of growth, land
added to Rome was no longer considered a part of the city proper and the ager romanus. Rather
newly acquired land became part of the agerpublicusor was given to colonies or the “municipia”
(Stephenson 1973, 10).
who were occupying the ager publicus, thus leaving the “state” without motivation
to eject the patricians.
De facto acceptance of this occupation—without formal legal sanction—of much
of the ager publicus land by the patricians created an interest that conflicted with the
concept of ager publicus lands as a resource to be given to new citizens of Rome if
they did not have land or a place to build a house (Stephenson 1973, 18). Attempts
by the state to distribute ager publicus land threatened the vested interests of the
patricians with possessio (Stephenson 1973, 18)8 of such lands and would have
deprived them of the wealth associated with such land (Stephenson 1973, 18).
Ongoing occupation and possessio of land by patricians led to the development
of enormous land estates, or latifundios,9 that were so extensive that the patricians
needed large amounts of labor to farm them (Wieling 1997, 20). The patricians were
loathe to hire “freemen” to do the farming labor because freemen could be called to
military duty and might thus have to abandon their work on the estate. The solution for
this, from the patricians’ perspective, was to use slave labor as slaves were immune
from military service requirements. This “solution,” however, left freemen worse off
than ever: even if the freemen were not fighting a war to expand the land that would
be occupied by the patricians, there was no land available to farm for themselves,
nor could they get work on the large land estates since the work was being done by
slaves (Smith 1875, 37–44).
Concentration of land and wealth became so pronounced and created such poverty
among the mass of Romans that calls for land reform increased along with the
resistance of those with vested interests in ager publicus to resist agrarian reform
(Nicholas 1962, 9). Some of the wealthy joined with the poor and dispossessed in
calls for land reform as it became clear that Rome, dependent on a citizen army, could
not afford to allow that same citizen base to “degenerate into a landless proletariat
dependent on the rich man’s dole (Nicholas 1962, 9).
As an early and brutal example of the threat agrarian reform posed to those
occupying ager publicus, one only need look to the example of Spurius Cassius.
Despite his status as a patrician, he presented an agrarian reform law, the Lex Cassia in
468 B.C. (Stephenson 1973, 24).10 The law proposed a survey which would delineate
both private and public lands and proposed that the ager publicus in the survey be
either distributed among the plebeians or leased for the benefit of the public coffers
8 While ager publicus possessed by the patricians theoretically remained public land and the patri-
archs held such lands subject to the right of the state to eject them, the fact that the patriarchs had
possessio of the property gave them a right over the property superior to that of other private parties
(Stephenson 1973, 18). In fact, with regard to other private parties, the rights of one with possessio
enabled that person to rent or sell the land like a fee-title owner (Stephenson 1973, 18).
9 Latifindo is the Spanish word for laufundium. Latifundium is a Latin term that literally means a
large private estate of real property (Garner 2004, 898). Latifundo has been adopted as a legally
significant term of art in Latin American land policy. For example, Venezuela defines a “latifindio”
as any uncultivated or idle rural land that exceeds 5000 hectares (Presidential Decree No. 1546,
Official Gazette of the Bolivarian Republic of Venezuela, No. 37,323, Article 7, 9 Nov 2001).
10 This book gives the date of the Lex Cassia as 268 B.C. This is a typographical error as the correct
date is 468 B.C. See Hornblower and Spawforth 1996, 301.

(Stephenson 1973, 24). While the Lex Cassia technically became law, it was never
enforced (Stephenson 1973, 25). The law provoked such outcry and passion that, at
the end of his term in office, Spurius Cassius was sentenced to death (Stephenson
1973, 25). In 376 B.C., Licinius proposed the Lex Licinia. This law limited the amount
of land that any one person could possess to 300 acres (Stephenson 1973, 38).11 It also
limited the number of cattle that any one person could graze on the public commons
(Stephenson 1973, 38). The Licinia Sexti, which was passed in 367 B.C., also limited
the amount of ager publicus that one person could own and put limits on the amount
of livestock an individual could pasture on public land (Stephenson 1973, 38). Like
previous efforts at land reform, these laws had little practical effect.
In 133 B.C. another agrarian reform effort emerged. Presented “[by] tribune Ti.
Sempronius Gracchus [the Lex Sempronia] create[d] allotments of the large area of
public land acquired after the Second Punic War. The new allotment holders paid
a small quit-rent and promised not to alienate their plot for a certain term of years.
[The law] also [upheld] previous land limits of 500 iugera” (Stephenson 1973, 69).12
The small allotments to those without land and the prohibition on alienation of small
land allotments sought to guarantee the use of these allotments by the recipient
for agriculture on the assumption that this would improve the situation of those
receiving the allotments (Stephenson 1973, 70). Like other agrarian reforms, this
one met with fierce opposition, and its proponent was slain soon after the law took
effect (Stephenson 1973, 73).
In sum, the ancient Roman state attempted land reforms as a means to address
the concentration of land and the conflicts arising out of resulting landlessness and
poverty. Unfortunately, these first western attempts at land reform largely failed
due to entrenched interests, a policy failure that would be repeated in the ensuing
millennia. We turn now to the Latin American experience.
11 Licinius, despite a hundred years of failures of agrarian reform, pushed this law regardless of its
draconian effect on the wealth of the patriarchs. Licinius thought he could unite the rich and poor
plebeians by simultaneously presenting another law that would give plebeians increased political
representation and power. This was designed to appeal to the rich plebeians that preferred to be
“upstarts among the patricians rather than leaders among the plebeians” while the land reform and
distribution would appeal to the poor (Stephenson 1973, 37–40). But this strategy failed and the
patricians united in opposition. Finally, after many years of continuing political struggles, Licinius
managed to get the laws passed (Stephenson 1973, 40–44). The laws, however, failed to have their
intended beneficial effects as compliance was virtually nonexistent and the rich got richer as the
poor got poorer.
12 Ironically the law seems to reward those who wrongly appropriated ager publicus for private use
by granting private ownership to the occupiers of up to 500 iugera of ager publicus (Stephenson
1973, 69–70, 73). An iugerum equals about 2500 square meters (Wieling 1997, 21 n 25).
9.2.2 Land Reform in Latin America: Historical Origins

of Land Concentration
Soon after the conquest of the New World, the problem of land concentration became
manifest throughout Latin America. This Part traces some of this history and the rea-
sons for land concentration in the region. This review suggests that the concentration
of land in Latin America developed as a result of the conquest, and its relationship
to the indigenous inhabitants of the region. Colonial tenure regimes perpetuated pat-
terns of land concentration which have persisted through the era of independence to
the present day.
9.2.2.1 Pre-colombian Land Tenure Systems
In significant parts of Latin America the Spanish arrived to find complex indige-
nous societies with highly evolved tenure systems. Many of the largest indigenous
cultures in Latin America had land tenure systems that vested power over land in
elites, and offered parallels to feudal tenure in Europe (Powelson 1988, 220).13 One
commentator has compared pre-Colombian Andean land tenure, which the Spanish
co-opted, to the Spanish rural comuna of the Sixteenth century (Arguedas 1968).
Some historians speculate that the European conquest was hastened by the ability of
the conquistadores to co-opt the tenure regimes already in place, merely substituting
themselves for indigenous elites (McBride 1923, 121, 123; Powelson 1988, 220).
While this analogy oversimplifies the nature and diversity of indigenous land tenure
in precolonial America, it does seem to hold true for the more powerful and com-
plex indigenous societies such as the Aztec, Inca, and Maya, who were themselves
conquering powers.
In coastal and northern Mexico the Aztecs developed a property regime that
shared characteristics of western notions of ownership (Gomez 1985, 1039, 1047
1051–1053; McBride 1923, 121). For example, all Aztecs, like all Romans, theoret-
ically had a right to possess land (Tannenbaum 1930; Powelson 1988, 219).14 The
Aztecs in Mexico also had a social organization in which land, held by the com-
munity, would be allotted to families according to need (Simpson 1937). Limited
land rights were distributed as a reward for military achievement, but even these
rights were only “private” to the individual for the individual’s life since the property
returned at death to the community (Powelson 1988, 219). When warriors received
lifetime property as a reward for military service, this included possession of the
people on the land and their labor (Powelson 1988, 219; cf McBride 1923, 120),
foreshadowing the Spanish encomienda system.15 Aztec elites altered this system
in their own favor by eliminating redistribution at death in favor of inheritance and
13 Noting the similarities in socioeconomic and land tenure structures between the Spanish and the
Aztecs at the time of the Spanish conquest.
14 Of course “all” here means males of a certain level of social and political status.
15 See infra Part 2.2.2.
began accumulating ever larger tracts of land for themselves (Powelson 1988, 219;
Simpson 1937, 17). Thus, some latfundios in Mexico represent successors to large
Aztec estates (McBride 1923, 122).
Pre-Colombian Andean societies also demonstrated a similarly complex land dis-
tribution dynamic (Canseco 1999). Despite centuries of control by the Inca state, the
Spanish Crown, and modern national governments, the predominant land tenure unit
today in Quechua and Aymara Indian regions of Andean Peru and Bolivia remains
the small semiautonomous community known at the ayllu (Ouweneel 2003, 92;
Palomino 1996, 9, 39).16 While the community-level land-tenure system has cer-
tainly undergone changes over the centuries, many Andean communities still retain
aspects of this system that likely date to pre-Inca times (Palomino 1996, 65–66).
During the period of expansion of the Inca Empire, the Inca lords used a strategy that
the Spanish would subsequently adopt: the absorption of preexisting land tenure and
social structures. The Inca maintained structures, such as the ayllu, largely intact,
while shaping these structures to meet the needs of the expanding Inca Empire (Klein
1993). Local-level chiefs, or kurakas, were kept in power, and served as intermedi-
aries between the ayllus and the Inca (Klein 1993, 10).
During the Inca period, while lands and usufruct rights were controlled by indi-
vidual ayllus, all land was apparently considered to be the property of the Inca State
(Palomino 1996, 37–38). Ayllu lands were divided into three parts, each having well-
established boundaries: one part for the state, one part for supporting priests and
religious ceremonies, and one part for the community (Palomino 1996, 38). In addi-
tion to other requirements of citizenship (such as military service and unpaid labor
for the Incan state), community members were required to work on the portions
of community land dedicated to the Incan state and religious hierarchy, under the
supervision of local lords, in order to provide agricultural tribute (Benton 1999, 21;
Carter 1963).
Analogies to the colonial Spanish tenure regime are difficult to escape. Indeed,
just as the Inca had used conquered enemy political power and power structures to
their advantage in building their empire, the Spanish did the same with the Inca. For
example, ayllu leaders, called jilaikatas, often served as mayordomos, or managers,
on Spanish haciendas (Klein 1993, 16).17 From very early on in its colonial history,
land was highly concentrated in the Peruvian altiplano, in part because land ownership
had been concentrated among the Incas (Powelson 1988, 236).18
Less information exists about Mayan tenure systems. From the limited evidence
available, it appears that the elite held a privileged status with regard to land and a
representative of the King had the power to allocate and reallocate land to families for
16 Noting that the Spanish took advantage of the ayllu structure rather than destroying it.
17 A hacienda is a “large landed estate, an ‘economic entity devoted to supplying local markets with
both grain and animal products’” (Mirow 2000, 45).

18 Noting that often large blocks of land would be given in a single grant if a block of land was
already organized under the Inca landholding system. Powelson also notes, however, that while land
ownership was concentrated, use of the land was not so concentrated (Powelson 1988, 237–238).
use (Powelson 1988, 217; Hill 1992, 48–49).19 Uncertainty regarding early Mayan
tenure is compounded by the fact that the Spanish arrived after the collapse of the
Maya Empire, when Mayan society had already abandoned their lowland city-states
and dispersed to the highlands of Mesoamerica. However, indigenous social organi-
zation and land tenure structures in the highlands of early colonial Guatemala appar-
ently shared many similarities with those of Andean society (Ouweneel 2003, 88).
The basic juridicalsocial unit was known as the chinamit (in Quiche-Kackchiquel
language), “controlled by indigenous caciques through the cabildo. or municipal
council, and claiming descent from a common ancestor” (Ouweneel 2003, 88; citing
Hill and Monaghan 1987).20 The Spanish referred to this land tenure unit as a par-
cialidad (Ouweneel 2003, 88) and co-opted the structure as a way for the Spanish to
exercise power over the Maya people.
These three indigenous groups, the Aztec, Inca, and Maya, were the most struc-
turally complex societies of pre-Colombian America, but they still only comprised
a fraction of the Latin American indigenous population and geographic distribution.
Even so, it was with these societies that the Spanish had the most sustained interac-
tion. The Crown’s ability to co-opt the tenure system of the indigenous elites not only
hastened conquest, it may also have sown the seeds for emergence of the skewed
land distribution that continues to plague the region.
9.2.2.2 Early Colonial Land Tenure Systems: Ecomienda

and Repartimiento
Encomiendas and repartimientos were typical early tenure practices of the Spanish
in Latin America and were used to encourage conquest and reward favorites of the
Crown or those empowered by the Crown to give grants. A grant of a right to use an
area coupled with the right to receive tribute of the indigenous people occupying these
lands was known as an encomienda (Sato 1976, 19–20; see generally Simpson 1966).
In “exchange” for the tribute of indigenous peoples to the grantee of the encomienda,
known as an encomendero, laws specifically required the encomendero to protect and
Christianize the indigenous peoples as well as ensure that they were permitted to use
their land for their own subsistence (Sato 1976, 19). In reality, any obligations of
encomenderos were little respected and often encomenderos encroached on indige-
nous lands the law obligated them to protect (Sato 1976, 19).21
19 Hill also notes similarities between Maya and Spanish landholding systems such as the common-
ers’ usufruct rights being limited to tracts under cultivation (Hill 1992, 50).
20 In the Yucateca.
Maya region of Southern Mexico the sociopolitical-tenurial unit was known as the cab, but
possessed similar characteristics to the chinamit (Ouweneel 2003, 89; citing Restall 1997).
21 Encomiendas and repartimientos resembled another Spanish tradition from the “Reconquest”
period in Spain: the adelantado. During the Reconquista, when the Moorish invaders were repelled,
those that pushed to the frontier and took control of land were given special fights, the adelantado,
often military in nature, to govern that land. The adelantado was a typical medieval institution
(Ots Capdequi 1946, 12). This was essentially the same type of reward that would be given to the
Technically an encomienda did not give the encomendero ownership of the land,
but only granted a right to demand tribute from Indians in the area covered by
the encomienda (Sato 1976, 19). Like other supposed limitations on the doctrine
of encomienda this had little relation to reality, and encomenderos often treated
encomiendas as alienable private property (Sato 1976, 19). This meant that encomien-
das were often divided, sold, or mortgaged in violation of the law.22 In addition to
the concentration promoted by large land grants, many grants were also made under
questionable authority or laws, often involving bribery (Powelson 1988, 242). These
problematic beginnings for European land rights in the New World continue to cast a
long shadow on the legitimacy of land tenure throughout the region (Powelson 1988,
242).23
It is difficult to accurately distinguish between repartimientos and encomien-
das in many respects (Ots Capdequi 1940, 102). Colonial-era documents frequently
used the terms interchangeably (Ots Capdequi 1940, 102). One distinction is that,
technically speaking, repartimientos has a broader meaning since a repartimiento
included everything in an encomiendo (the right to demand tribute, for example)
and could also give rights to the grantee to demand that the indigenous inhabitants
of an area labor in mines, cultivate crops, or construct public works (Ots Capdequi
1940, 102–103). Repartimientos varied from grant to grant (Ots Capdequi 1940,
38) and often included the authority to divide and parcel out the land as well as to
appoint public officials (Ots Capdequi 1946, 12; Powelson 1988, 235–236).24 Like
encomiendas, a repartimiento did not convey clear title to the land in the grant (Sato
1976, 3–4; Hormaeche 2010).25 Rather, repartimientos were a reflection of feudal
notions of landholding that were already extinct in Spain during the colonial period
(Ots Capdequi 1946, 12).26
Recipients of Spanish grants often abused their authority. Eventually the inherent
tension between the rights to property asserted by encomenderos and the far more
limited rights actually intended by the Crown resulted in a power struggle between the
Crown and encomenderos (Ots Capdequi 1946, 15–16). For example, the massive
grants of the New World were originally intended to be only for the life of the
recipient. As estates of the encomenderos grew, so did the power of these great
landholders, the colonial “lords of the manor.”27 In the face of this growing threat,
explorers and conquerors of the New World even though the concept of adelantado had already
ceased in Spain (Ots Capdequi 1946, 12; Powelson 1988, 201).
22 Such a divorce between official law and reality was common during the colonial period of Latin
America (Ots Capdequi 1946, 6–17; Palomino 1996, 39) (noting that the Spanish were unable to
effectively enforce Crown laws protecting the Indians from abuses of the encomenderos).
23 Noting this dynamic in Argentina.
24 Noting that in 1529 Pizarro received authorization to conquer Peru along with authority to allot
lands, apportion the indigenous population, and appoint public officials.

25 A repartimiento was not itself title to land, but rather an expectation of title if certain conditions
were met (Ots Capdequi 1946, 38–39).

26 Noting that the authority of conquerors to make grants represented the influence of medieval
Spanish feudalism that was already extinct in Spain.

27 Encomenderos sought increased political autonomy, for example (Palomino 1996, 39).
the Crown sought to divide large landholdings in order to subdue the power of the
encomenderos. The representatives of the Crown charged with carrying out this task
were, however, some of the largest encomenderos and thus not inclined to obey the
Crown’s wishes—the same conflict-of-interest dynamic confronted by the Roman
state almost two millennia earlier. Furthermore, many of the judges in the tribunals
and other representatives of Crown authority were more steeped in Justinian Roman
law concepts of law and absolute private property ownership than they were in
feudal notions of tenure and its more limited rights associated with land holding
(Ots Capdequi 1946, 17, 77–78). As a compromise, and to maintain the support
and allegiance of encomenderos, the Crown finally agreed to extend encomiendas
from “the life of the encomendero’ to “two lives.” This still did not end the conflict
and encomienda rights continued to receive periodic extensions until “temporary”
encomiendas had effectively become permanent (Parry 1966, 61).28
Thus, in comparing the land tenure systems of the largest and most complex pre-
Colombian cultures in the New World with those introduced by the Spanish, scholars
have noted certain similarities. Indigenous and Spanish systems both possessed ele-
ments of feudalism. Also, some indigenous groups were already accustomed to pay-
ing tribute to those who had conquered them.29 There appears to be some agreement
that these similarities in tenure systems of the Spanish and indigenous populations
facilitated the imposition of the encomienda system on significant segments of the
indigenous population (Mirow 2004, 1, 6–7).
9.2.2.3 Colonial-Era Efforts to Address Land Concentration
The Spanish Crown’s early policy of land for conquest through repartimiento and
encomienda inevitably led to the inequitable distribution of land in much of the
New World. This concentration of land holdings in colonial elites led to an early
realization by the Spanish Crown that latifundios, the scourge of Roman land tenure,
now dominated New World land tenure.30 As the Crown grew increasingly concerned
about the proliferation of latifundos, the Crown began to manipulate property rights
and land policy to address the problem and to stimulate development, beginning a
legacy of state intervention in land tenure and property rights that continued through
independence to present day Latin America, and foreshadowing the emergence of
the Social Function Doctrine in the region. When the Crown’s interests shifted from
28 Noting that settlers pressed the Crown to make encomiendas entailed estates.
29 See,e.g., Hormaeche, § 3 (citing Gibson 1990, 157–188; Busbin [no date]).
30 The Spanish Crown’s concern with the growing power of the latifundio owners echoed the problem
of the Roman state more than a millennia before:

If private individuals acquire very large amounts of land the resulting economic power tends
to become transformed into political power. The ownership of land turns into lordship over
the land, the owner of the land assumes the functions of the state and becomes a power factor
which threatens and limits the authority of the state (Wieling 1997, 22).
conquest to stabilization of new populations in conquered areas, it promoted more

permanent settlements and agricultural production by attaching conditions to further
grants of interests in land (Ots Capdequi 1946, 27–28). Thus, for example, the Crown
made inalienable small grants in Mexico that had to be cultivated within two years or
returned to the Crown (Powelson 1988, 220). Similarly, the Crown actively sought to
encourage a pattern of small landowners working the land in Peru (Powelson 1988,
237–238). Ultimately, however, Crown policies aimed at more stable, permanent
settlements and agricultural production by independent landholders failed to displace
the entrenched notion of landed wealth held by colonial elites (Ots Capdequi 1946,
51–52).31
In 1591, the Spanish Crown embarked on its first “agrarian reform” in the New
World (Ots Capdequi 1946, 67). Under this “reform” the Crown would reclaim all
lands under its control that lacked “just and true title”.32 Like ancient Rome before
it, and myriad efforts that would follow it, the reform sought to clarify existing rights
and provide tenure security on legally acquired lands (McBride 1923, 56). This was
accomplished through the composición, or confirmation of land title (McBride 1923,
56), which essentially was a fee paid to the Spanish Crown to legally recognize
existing use of lands and issue a valid title.33 The composición fundamentally relied
on the notion that all land belonged inherently to the Crown of Spain (Ots Capdequi
1946, 27), and that only through a grant of rights from the Crown could one have
any legal right to land.34 The composición theoretically required delimitation and
demarcation of the land to be titled, but typically the estates were so large that
this presented virtually insurmountable challenges (McBride 1923, 56–57). This
suggests that this composición was less intent on effective land redistribution than
raising funds for the Spanish Crown (Ots Capdequi 1946, 115, 130) as well as to
address titling confusion (cf. Ots Capdequi 1946, 70–71). Interestingly, the reform
also explicitly legitimized some current land holdings that were not properly granted
31 Noting policy decreeing smaller grants of land to avoid the problems of latifundios.
32 Ots Capdequi (1946), 70 citing Recopilación de las Leyes de los Reinos de Indias 1680 as a
codification of the Royal Decree of 1591, Libro IV, titulo XII, Ley 14.
33 Composición was a reaction both to the Crown’s need to begin generating revenue through land
alienation rather than giving it away and as a way to address the reality of extensive illegal occupation
of land (Sato 1976, 9–10). Thus, the composición envisioned an assessment of lands, payment of
a fee for lands not legally belonging to the possessor, and issuance of title (Sato 1976, 9–10; Ots
Capdequi 1946, 68–73).
34 See, e.g., Recopilación de las Leyes de los Reinos de Indias 1680 as a codification of the Royal
Decree of 1591, Libro IV, titulo XII, Ley 14: “Por haber Nos sucedido enteramente en el señorio
de las Indias y pertenecer a nuestro patrimonio y corona real los valdios, suewlos y tierras, que
no estuvieren concedidos por los señores Reyes nuestros predecesores, o por Nos, o en nuestro
nombre, coviene que toda la tierra, que se posee sin justos y verdaderos títulos, se nos restituya,
según y como nos pertenece.” [“Because we are the successors in seigniorality [dominion] over the
Indias [New World], the Indias are now part of our patrimony and our Royal Crown owns all vacant
areas, soils and land that were not granted by the kings that were our predecessors or in our name
or by Us; thus, all lands not held by virtue of a true and just title issued by one of these authorities
must be returned to Us as it is our land.” trans: Thomas Ruppert].
(Ots Capdequi 1946, 71).35 Despite such early and half-hearted attempts at land
reform, land concentration and tenure insecurity continued to plague Latin America
throughout the colonial period (Ots Capdequi 1946, 107–108).
Brazil merits separate consideration in this context as it fell under Portuguese
rather than Spanish rule. Though some of the colonial drivers differed, Brazil was
not immune from the latfundio legacy. Early disinterest in real colonization led the
Portuguese crown to offer generous, relatively unencumbered land grants referred to
as sesmarias (Alston et al. 1999, 34). The only caveat to these crown grants was a
reversionary clause in the event the property was not cultivated and put to “beneficial
use,” a requirement that foreshadows much of the country—and region’s—subse-
quent land policy problematic (Alston et al. 1999, 34). Despite the presence of this
social function precursor, reversions did not occur, and Brazil embarked on a path
of land concentration that has few rivals globally (Alston et al. 1999, 34).
9.2.2.4 Initial Postcolonial Land Reform Efforts
As the countries of Latin America gained their independence in the nineteenth cen-
tury, the colonial legacy of encomiendas and laifundios persisted, typically metamor-
phosing into haciendas (Alexander 2003, 3–6).36 Haciendas greatly resemble their
colonial predecessors but typically lacked the right to exact tribute.37 The monopoly
of land by hacendados led newly independent states to engage in land reform. This
Part offers some brief examples.
Mexico attempted its first land reform soon after independence in 1821. A key
feature of this early reform attempt was the confiscation of large tracts of land from
the Catholic church in the mid 1800s (Powelson 1988, 227–228). This reform also
led to settlement of some empty lands but failed to realize the goal of widespread
small landholdings (Powelson 1988, 228). This initial failure engendered further
efforts at reform as the 1910 Mexican revolution ended the thirty-four-year rule of
Porfirio Diaz, known as the “Porfiriato.” In the General Agrarian Law of 1915, article
1 stated that “the existence of large territorial lands is considered incompatible with
the peace and prosperity of the Republic” (Sanchez 2003, 47). Article 3 of this law
declared the public utility of breaking up excessively large estates (Sanchez 2003,
35 Corruption often included grants of lands by cabildos or city councils (Sato 1976, 6–8).
36 A hacienda is “large landed estate, an ‘economic entity devoted to supplying local markets with
both grain and animal products’” (Mirow 2000, 63).
37 Haciendas were large areas (usually from 1,000 to 100,000 hectares with an average of 3,000
hectares) possessing many different types of agricultural land and activities that an absentee
landowner managed and cultivated through hired management (Simpson 1937, at 489–490). Hacien-
das were often largely self-sufficient and housed a permanent labor force (Simpson 1937, at
489–490). However, both of these attributes have changed as large farms have become more mech-
anized (Thiesenhusen 1995, 8). One common way for hacendados to ensure that the resident labor
supply, usually composed of Indians, remained on the hacienda was to loan money to the laborers
or require that they only purchase in script at the equivalent of the company store, thus utilizing
laws of debt peonage to bind Indian laborers to the land (Simpson 1937, 16–17, 38–39).
48 (emphasis added)).38 Article 8 did, however, also contemplate compensation for

expropriated land (Sanchez 2003, 48), something often overlooked by critics of the
Mexican Revolution.
In Peru, shortly after independence, an effort to remake the Inca into small land-
holder/farmers in the image of the Europeans failed. Laws intended to help the Inca
actually led to greater loss of their land and continued concentration of land in
the hands of wealthy latifundistas (Powelson 1988, 238–239). The legal means by
which land concentration continued in Peru in the nineteenth and twentieth centuries
remains unclear; evidence appears to indicate that enlargement of landholdings likely
occurred through extralegal appropriation by powerful private landowners (Powelson
1988, 239–240).
In Argentina, early emphasis on cattle ranching led to the emergence of latifundos
at the expense of cultivated crops. The lack of access to land and food resulted in a
very early attempt at agrarian reform in the mid-1820s in Argentina. The president
promulgated a law of emphyteusis39 that did not allow alienation of state land for
thirty-two years. During this time, the land was rented, at minimal rent, to small
holders; at the end of the thirty-two-year period, the government was obligated to sell
or grant the land, preferably to those that had already been using it (Powelson 1988),
243. Once the proponent of this plan had been overthrown however, the program was
perverted to the ends of the latifundistas. One family alone received over 864 square
kilometers of land (Powelson 1988, 243). The emphyteusis laws were further altered
to favor individuals who had acquired extensive lands by extending the period of
possession indefinitely and lowering rents (Powelson 1988, 244). Later attempts at
diversifying land ownership proved no more successful than the emphysteusis laws.
In 1822, just months prior to independence, Brazil abolished the Portuguese-
inspired Sesmaria system, but failed to replace it with a new land law (Benatti 2004,
65). Instead, the new nation’s still plentiful land was “distributed” under the legal
doctrine of “posse” or occupation (Benatti 2004, 65). Those in the best position to
benefit initially from this frontier doctrine were latifundistas with the capacity to
occupy and defend their claims (Alston et al. 1999, 34–35). Brazil passed its first
land law in 1850, first legitimizing all sesmarias and posses, then abolishing the legal
basis for the latter (Benatti 2004, 66; Alston et al. 1999, 34–35). Abolition of posse
was designed in part to secure latifundios from the waves of encroaching squatters
who could themselves assert posse (Alston et al. 1999, 35). In 1889 jurisdiction over
land policy transferred to the Brazilian states, which set out to alienate state lands,
though this did not greatly affect the actual distribution of lands, which remained
concentrated in large landholdings (Alston et al. 1999, 36). As the twentieth century
unfolded, available public land for distribution to the landless diminished and the
38 In Spanish: utilidad pública.

39 Emphyteusis is “A lease contract for a long period of time, subject to the terms of the lease contract,
and generally giving the lessee the full use and benefit of the leased real property, on condition
that the lessee does not substantially compromise the real property and alters it only by adding
constructions, works or plantings that increase its value in a lasting manner” (Duhaime.org 2018).
Furthermore, this perpetual leasehold may be alienated or inherited and may not be taken back by
the “owner” as long as the leaseholder pays the rent (Wieling 1997, 20–22).
Brazilian government began to covet the latifundios, and the beneficial use doctrine
reemerged as a basis for expropriation–often with little or no compensation (Alston
et al. 1999, 37–38).40 Despite these efforts land reform in Brazil’s early postcolonial
era was largely considered a failure (Alston et al. 1999, 37–38).
In summary, on the eve of the twentieth century, Latin America already had a long
and troubled history of state efforts to manipulate property rights to alleviate the con-
flicts and problems inhering in concentration of land. Early in the colonial period the
Crown used its power to structure property law to encourage conquest and co-opt
indigenous tenure regimes. It later sought to manipulate land policy and property law
to diminish the growing power of the colonial elites, to encourage permanent colo-
nization and agriculture, and to create a new source of revenue through a fee-based
process for regularizing title. By the early postcolonial period, the newly independent
countries of Latin America were continuing the tradition of land reform, seeking to
alleviate the social problems associated with land concentration and its attendant
landlessness. These efforts began well before the modem introduction of the Social
Function Doctrine into the lexicon of political philosophy, and its incorporation into
land policy. Still, the precedent for the mechanism through which the Social Func-
tion Doctrine would manifest itself, state manipulation of private property rights (cf.
Ots Capdequi 1946, 77)41 had been firmly established in Latin America. The Social
Function Doctrine would offer a philosophical and juridical basis to continue these
policies.
9.3 The Social Function Doctrine as the Legal Basis

for Land Reform
In the early twentieth century, inequitable land distribution in Latin America con-
verged with the emergence of European socialist ideology and spawned revolutionary
fervor in the region. In most of Latin America the encomienda and repartimiento
systems had been replaced by the hacienda system, perpetuating a two-class society
of landed and landless (McBride 1923, 65).42 Several Latin American countries top
the list in unequal distribution of land. In Brazil, for example, two percent of the
farm operators held over half the farmland (Thiesenhusen 1995, 8). The Mexican
Revolution, in particular, represented a direct assault on the hacienda system. The
most significant factor fomenting the 1910 revolution was inequitable land distribu-
tion (Simpson 1937, 43). In 1906 a group of liberals opposed to the dictatorship of
40 This, of course, does not consider the vast forests of the Brazilian Amazon, which remained
beyond the reach of colonization and Brazilian land policy until the second half of the twentieth
century.
41 Comparing treatment of private property during colonial times with the Social Function Doctrine
of modem times.
42 Noting that the Mexican Revolution was in part a result of the division of society into a miniscule
landowning class and a very large landless class.

Porfirio Diaz published the “Programa del Partido Liberal Mexicano,” or “Platform
of the Liberal Party of Mexico,” which stated that “owners of land are obligated to
ensure that all of their land is productive; any part that is not productive may be seized
by the state” (Magallón Ibarra 2002, 12). Revolutionary leaders called for expropri-
ation of the haciendas and redistribution of hacendado land to a growing mass of
landless peasants. The revolutionaries argued that fallow land locked up in haciendas
was not benefiting society and obligated the state to once again intervene in property
relations. The emerging Social Function Doctrine would justify the exercise of that
obligation.
9.3.1 Competing Perspectives on the Role of Property

in Human Social Organization
Rather than viewing the state as a supposedly neutral arbiter of private property
relations through land titling, registration and market regulation, the Social Func-
tion Doctrine suggests a significantly greater role for state action in affirmatively
employing land policy to effect social change. This Part provides the philosophical
background for the development of two contrasting views of the role of property
and the state. We then distinguish and compare treatment of the public’s interest in
individual real property under the “public use doctrine.”
Political systems fall somewhere along a continuum describing property rights.43
At one extreme reside systems that simply do not contemplate individual ownership
of real property44 ; these, to the extent they exist, do not form part of our discussion. At
the other extreme of the property continuum lies a system where individual property
ownership vests independently of the existence of states and where the state has no
ability to limit the actions of property holders. While it is equally likely that such a
system does not exist,45 its closest analog may be what is characterized as allodial
tenure. Allodial land is land held in absolute ownership and which gives rise to no
obligations on the part of the owner to anyone else (Garner 2004, 83).46 The notion
43 For examples of expressions of the continuum, see Hendrix (1995), 5–6, Boyle (2001), 673 n 74
quoting Montgomery (1984); cf. University of Minnesota (2018).
44 This may describe some, but not all, indigenous conceptions of property. The famous quote “[t]he
Earth does not belong to man-man belongs to the Earth,” is often cited as evidence of this indigenous
view of land. Interestingly, this quote has been erroneously attributed to Chief Seattle. See, e.g., the
entry in Snopes.com at https://www.snopes.com/fact-check/chief-seattle/.
45 “[T]here is no such phenomenon as absolute private ownership of productive property in any
known economic system” (UNHCR 1993, 479).

The prototypical example of “inviolable and sacrosanct” private property rights, Roman law,
also had property rights limitations that have not been properly appreciated in many analyses of
Roman property law (Alfaro 1980, 11–15; citing Margadant 1956; Bustamante 1967; Petit 1966;
de Camps y Arboix 1953, 30; Brenes Cordoba 1963, 24; Planilo 1955, 98).
46 The United Nations’ Food and Agriculture Organization defined “allodial” without reference to
taxes or eminent domain powers of the state and whether or not these are compatible with the
concept of allodial tenure (UN Food & Agriculture Organisation 2003, 143).
of allodial tenure has captured the imagination of some libertarians and individuals
in the contemporary property rights movement in the United States; these people
view allodial property as a means to reject any form of state control over property,
including taxation and regulation (Constitutional Review Committee 2003).47
While some definitions of allodial indicate that land is only allodium if it is not
subject to property taxes (Constitutional Review Committee 2003), this conflicts
with the reality that land, in many of the states within the United States, is said to
be allodial but still subject to property taxes.48 In practice, it would appear that little
or no practical difference exists between allodial land and fee simple tenure in the
United States (Garner 2004, 83),49 and this appears to be the case in most current
“allodial” land systems.
Arrayed towards the “no-private-property” end of this broad continuum appear
systems that contemplate monolithic ownership by a sovereign entity in which ten-
ancies, estates, or usufruct rights are parceled out to varying extents. Communal,
feudal, and regalía50 property systems fall in this category.
The regalía model involves the belief that all land originally belongs to the state,
and thus only by a grant from the state can one hold a private interest in land (Castillo
1987, 33–35; Woodward 1985, 55–56; University of Minnesota 2018).51 The com-
posición process the Spanish Crown attempted to use in the New World gave evidence
of this conception of land since the process assumed that all land that had not been
validly granted by the Crown still belonged to the Crown (Woodward 1985, 55–56).52
47 For examples of a website promoting allodial title, see, e.g., https://

theconstitutionalresourcecenterdotcom.wordpress.com/the-right-of-the-citizens-of-teh-several-
states-to-hold-title-in-allodium/. In addition, many websites advertise services to help property own-
ers in the United States secure “allodial” title to land. See, e.g., http://www.freedomforallseasons.
org/AllodialLandPatentReports/DO%20YOU%20HAVE%20ALLODIAL%20TITLE%20ON%
20YOUR%20PROPERTY_html.htm.
48 Charles E Curry Co v Goodman, 737 P2d 963, 965 (Okla Civ App, 1987) (finding without merit
a contention of “allodial freehold” immunizing a property from foreclosure); County of Dane v

Every, 131 Wis 2d 592 (Wis App, 1986) (finding that the Wisconsin Constitution’s declaration of
all land in the state “allodial” does not eliminate the state’s authority to impose property taxes);
Dunn County v Svee, 143 Wis 2d 209 (Wisc 1988).
49 Defining allodial and allodium.
50 Regalía means “royal privilege” (American Heritage Spanish Dictionary 2005), or “a good of
the Crown” (Ots Capdequi 1946, 21). The name was also given to a concession from the Crown
(Godreau and Giusti 1993, 407). The concept of Regalia came from feudal times and stated that,
upon conquest of an area by the Crown, all land belonged to the Crown (Molintas 2004, 290; Ots
Capdequi 1946, 21, 27).
51 Interestingly, while the United States is seen as a prototypical example of the “property-rights”
model, the country from which the U.S. states fought for its independence, England, seemed con-
flicted on which model it followed in the Colonies. England sometimes advocated the “property-
rights” model ideal that allowed settlers to claim land for themselves without an express grant from
the state; on other occasions, the state insisted on the regalia model and ultimate ownership of all
lands always resting in the Crown, thus leading to the requirement of an express grant to have a
valid title claim (McNeil 2002, 481–484; Treanor 1985, 697). Furthermore, even the United States
has utilized the regalía concept of land in U.S. colonial endeavours (Molintas 2004, 284).
52 See supra notes 32–34 and accompanying text.
The regalía concept of ownership developed out of Spanish feudal structures to

resolve confusion about whether the king held land in the king’s private role as the
top rung of the feudal ladder or in the king’s public role as the state sovereign (Ots
Capdequi 1946, 19–22). In Spain, the feudal system, known as señorío, arose due
to the ineffectiveness of the state in administering justice (Ots Capdequi 1946, 20).
This led those that were unable to defend themselves to “recommend” themselves to
a señor or lord (Ots Capdequi 1946, 20). This recommendation included ownership
of the land (Ots Capdequi 1946, 20).
As in the rest of Continental Europe’s feudal system, there were many steps on the
feudal ladder. In Spain, the top rung was the greatest lord or señor of all-the king—
considered “owner” of all the land that had been recommended to all the inferior
lords below him. The king was “owner” of all land, then, not because he was king,
but because he was the ultimate señor in the feudal system (Ots Capdequi 1946,
20). The king held this land personally and thus could even bequeath it to others at
his death. However, with the reintroduction of the Roman law through the Institutes
of Justinian in the second half of the twelfth century and first half of the thirteenth
century, confusion arose regarding the king’s ownership of this land (Ots Capdequi
1946, 20). Through a slow process of judicial development, lands held by the king
became property of the king as head of the state rather than personal property of the
king as the highest lord in the feudal structure (Ots Capdequi 1946, 21), thus vesting
title of the land in the state.
In Latin America, Mexico’s revolutionary constitution expresses most directly and
succinctly the regalía view of ownership. Article 27 declares that all land originally
belongs to the state, which may pass title of land to individuals, thus creating private
property.53 Similar language can be found in the constitutions of some states in the
United States.54
Most modem nation-states fall within the broad middle of the property continuum,
recognizing individual ownership of property even as they explicitly or implicitly
retain the ultimate role of the state as the default owner of all property within their
53 Constitución Política de los Estados Unidos Mexicanos (Mexico) Article 27: “La propiedad de
las tierras y aguas comprendidas dentro de los limites del territorio nacional, corresponde origi-
nariamente a la Nación, la cúal ha tenido y tiene el derecho de transmitir el dominio de ellas a
los particulares, constituyendo la propiedad privada.” [“The land and waters within the national
boundaries belong originally to the Nation, which has and continues to have the right to transmit
ownership to individuals, thus constituting private property” trans: Thomas Ruppert]. The Consti-
tution of Bolivia presents another example: “Las tierras son del dominio originario de la Nación y
corresponde al Estado la distribución, reagrupamiento y redistribución de la propiedad agraria con-
forme a las necesidades económico-sociales y de desarrollo rural.” [“Property is under the dominion
of the Nation and the state holds the responsibility for distribution and redistribution of agricul-
tural property according to socio-economic and rural development needs.” trans: Thomas Ruppert]
(Constitution of Bolivia (Bolivia) Article165).
54 See, e.g., South Carolina Constitution Article XIV § 3: “The people of the State are declared to
possess the ultimate property in and to all lands within the jurisdiction of the State; and all lands
the title to which shall fail from defect of heirs shall revert or escheat to the people”; Wisconsin
Constitution Article9 § 3: “The people of the state, in their right of sovereignty, are declared to
possess the ultimate property in and to all lands within the jurisdiction of the state; and all lands the
title to which shall fail from a defect of heirs shall revert or escheat to the people.”.
jurisdiction (Powell and Rohan 2004, § 10.02). Within this model, however, the
extent to which property rights are individualized, and the extent to which the state
may intervene in those rights, varies dramatically.
With the demise of feudalism, the Enlightenment saw emergence of an alternative
view of the state and land ownership, grounded in the theory of natural law. This
view, which arose largely in reaction against the arbitrary absolutism associated with
feudalism (cf. Garea 1997, 3055 ; see also Alfaro 1980, 17, 23–24), asserted that land
ownership emerged independently of the state and that the state only exists because
of a “social contract” (Locke 1690, Chap. VIII §§ 95–97; Rousseau 1762, 14) and
with the “consent of the governed.”56
The English political philosopher John Locke is often credited with developing
the modem “property rights” rationale that emphasized a natural law right to prop-
erty (Locke 1690, Chap. V). Locke theorized that property ownership arises from
the individual’s investment of sweat equity in property—the so-called “labor theo-
ry” of property (Locke 1690, Chap. V, § 27).57 The state, in this view, was founded
primarily to ratify and protect land rights acquired by natural law.58 In Europe, the
natural law right to property was codified in article 17 of the 1789 French Declara-
tion of the Rights of Man and of the Citizen, which provides, “Property, being an
inviolable and sacred right, no one may be deprived of it; unless public necessity,
legally investigated, clearly requires it, and just and prior compensation has been
paid”.59 This conception of private property cemented its dominance in western law
with incorporation into the 1804 Napoleonic Code (Garea 1997, 83; Alfaro 1980,
17)60 and the United States Constitution.61 The civil codes of most Latin American
countries originated primarily from the 1804 Napoleonic Code and echoed its view
of private property (cf. Mirow 2004, 97–99, 135, 137–138; Alfaro 1980, 17, 114).
Thus, by the beginning of the twentieth century, Western legal thought had dimin-
ished the importance of feudal notions of sovereign ownership of private property.
In civil law countries, property had become part of the corpus of what is known
as “private law” (Yiannopoulos 2001, § 4). In the civil law tradition, private law is
found in the civil code, which, while dating back centuries, has its first comprehen-
55 Noting that the guarantees of individual rights against state action make sense in the context of
the late eighteenth—and early nineteenth-century struggle against the plenary political power of
nobles, lords, aristocracy, and ecclesiastic authorities.
56 “I moreover affirm, that all men are naturally in [the state of nature], and remain so, till by their
own consents they make themselves members of some politic society” (Locke 1690, Chap. II § 15).
57 Jean Jacques Rousseau agreed that labor was a critical part of establishing property rights, at least
in the absence of anyone with legal title (Rousseau 1762, bk 1, Chap. 9).
58 “The great and chief end, therefore, of men’s uniting into commonwealths, and putting themselves
under government, is the preservation of their property. To which in the state of nature there are
many things wanting” (Locke 1690, Chap. IX, § 124).
59 Declaration of the Rights of Man and of the Citizen 1789, Article 17.
60 Section 544 of the French Civil Code reads: “Property is the right of enjoying and disposing of
things in the most absolute manner, provided they are not used in a way prohibited by the laws or
statutes.”.
61 United States Constitution Article V.
sive expression in the Napoleonic Code of 1804. The Napoleonic Code codified the
“inviolable” nature of the individual right to property expressed in the 1789 Declara-
tion of the Rights of Man and of the Citizen and made it a matter of private civil law.
The individual right to property thus entered the twentieth century on two formidable
legal pillars: the liberal constitution and private civil law.62 Still, the long history of
communal land in Latin America, pre-Colombian feudal tenure arrangements, the
manipulation of land rights in Latin America by colonial powers, and extreme land
concentration remained an integral part of Latin America.
9.3.1.1 The Modern Social Function Doctrine
Once the individualist notion of private property was enshrined in multiple civil
codes, this liberal conception of property held the upper hand for almost 100 years.
During the late nineteenth and early twentieth century; however, increasing inequality
in property began to foment a reaction against the absolutist nature of property
inherited from the French Declaration of the Rights of Man and of the Citizen as well
as the 1804 Napoleonic Code.63 The reaction to this disparity and other manifestations
of unbridled capitalism presented itself as the “socialization” of law (Alfaro 1980,
18–19). Auguste Comte, in 1850, planted the seed that would blossom into the
modern social function. Comte wrote that all citizens act as public functionaries
whose attributes determine their obligations and aspirations and that this concept
should be expanded to include property (Alfaro 1980, 52).
62 The conception of private, individual property as an inviolable natural law right was not, even as
far back as the eighteenth and nineteenth centuries, unchallenged by opponents. For example, the
philosopher Jean Jacques Rousseau opined that all real property ultimately resided in the state since,
as part of the social contract, each person delivered his or her person and goods to the state; the state
then protects the rights of the possessors of property as depositories of the public good (Rousseau
1762, bk 1 Chap. 9). John Stuart Mill, in regard to property, said that “no exclusive right should
be permitted in any individual, which cannot be shown to be productive of positive good” (West
2003, 35 quoting Mills JS). Mills and other utilitarian philosophers viewed property as something
created and “permitted” by the state. Closer to home, Henry George during the late nineteenth and
early twentieth century argued:
In the very nature of things, land cannot rightfully be made individual property. This principle
is absolute. The title of a peasant proprietor deserves no more respect than the title of a
great territorial noble. No sovereign political power, no compact or agreement, even though
consented to by the whole population of the globe, can give to an individual a valid title to
the exclusive ownership of a square inch of soil. The earth is an entailed estate—entailed
upon all the generations of the children of men, by a deed written in the constitution of
Nature, a deed that no human proceedings can bar, and no proscription determine (George
1884, Chap. VIII, 45).
George even said that “private property in land … never arises from the natural perceptions of men,
but springs historically from usurpation and robbery” (George 1884, Chap. IX, 50).
63 Many commentators have noted that the 1804 Napoleonic Code represented the pinnacle of
individualism and protection of those with property while ignoring the needs of the larger society
and those without property (Garea 1997, 168; Alfaro 1980, 5).
Most commentators ascribe the modem articulation of the Social Function Doc-
trine to the French jurist Leon Duguit.64 Writing in 1919, Duguit reasoned that the
state’s real authority emanates from the functions it performs; key among these func-
tions is for the state to provide for certain social needs (Duguit 1919). In this context,
state protection of private property remains justified only insofar as its protection
by the state furthers the state obligation to ensure that property provides a “social
function” (Hendrix 1995, 5). This view, and the fact that it gives the state the right to
seize property for failure to effectively utilize the property for the benefit of society,
fits comfortably with those property systems that offer greater opportunity for state
intervention in property relations to achieve state ends.65 This view also fits comfort-
ably within the historical context of the times, when socialism was on the march and
the concept of “economic and social rights” gained currency (Hale 2000).66 In Latin
America, the Mexican Revolution coincided with this era and its 1917 constitution,
discussed below, represents the world’s first example of what has been called “social
constitutionalism” (Valades 2004, 231). Following Mexico, other states in Europe
and Latin America explicitly incorporated the Duguitian idea of social function in
their constitutions.67
Despite the conventional dogma, Locke’s labor theory of property and Duguit’s
notion of property’s “social function” share a common attribute: neither condones
allowing land appropriate for agricultural production to remain idle while willing
laborers have no place to invest their labor. Nonetheless, as property theory has
evolved in the twentieth century, Locke and Duguit have found themselves pushed
to different ends of an increasingly muddled property spectrum. The echoes of these
contrasting theories of ownership persist in increasingly subtle distinctions about
the way that the state views the rights and obligations of property owners. These
distinctions can be best illustrated by examining the use of state power to expropriate
private property and the modem history of land reform in Latin America.
64 Schneiderman (2000, 92); Sentencia C-204/01 § VII.16 (Supreme Constitutional Court of Colom-
bia, 2001).
65 The concept of social function is not unique to Spain or Latin America. Germany has a similar
concept in its constitution and Italy has the idea of social concept in its civil code (Hendrix 1995,
5, 8 n 41). In Indonesia, “social function” is rooted in the constitution and the belief that “[l]and
is seen as the fundamental provider of food, shelter and clothing-rights that are guaranteed in the
constitution and national philosophy” (Thorburn 2004). Several other European nations and Japan
also recognize the Social Function Doctrine.
66 While some might initially feel that the Social Function Doctrine represents the demise of private
property or a “slippery slope” towards its destruction, many have advocated the Social Function
Doctrine specifically as a way to protect private property from destruction. Among these count
the Catholic Church (Alfaro 1980, 34, 39, 41); and Leon Duguit (Alfaro 1980, 55). In fact, the
U.S-led Alliance for Progress in the 1960s in Latin America actively promoted agrarian reform in
Latin American countries as a way to deal with social inequalities that had great potential to spawn
expanded communism in Latin America; domestic enabling legislation in many Latin American
countries that enabled such U.S.-supported land reform to occur included the Social Function
Doctrine as a foundational justification for the land reform (Alfaro 1980, 85–88).
67 These include Spain (1931); Weimar Republic (1919); Chile (1925), and Colombia (1936)
(Marinkovic et al. 2004).

9.3.1.2 Distinguishing the Common Law’s “Public Use” Doctrine

and Related Concepts in the Civil Law
All states along the property rights continuum include policy justifications for limi-
tations on property rights to benefit society, including the physical expropriation of
property under appropriate circumstances. The substantive standard for expropriation
in the United States requires that the expropriation be for a “public purpose”.68 U.S.
jurisprudence affords the state considerable leeway in applying this public purpose
test.69 In Latin America, analogous terminology to “public purpose” can be found
in all constitutions, and is most often characterized as “utilidad pública,” or “public
utility” an essentially direct translation of “public use”.70 Other terms used to justify
traditional expropriation may include “public interest” and sometimes includes “so-
cial interest,”71 although “social interest” may also be used to characterize something
more akin to the Social Function Doctrine in some cases. The linguistic similarity of
these standards is no coincidence. Latin American constitutions are largely modeled
after their United States counterpart (Ankersen 2003, 820–821), especially in the
area of individual rights (Blautstein 1987, 444–447). Included among these rights is
the individual right to property and the corresponding governmental prerogative to
expropriate for “utilidad pública.”
Despite similar constitutional language to rationalize expropriation in countries
adhering to both the common law and the civil law tradition, there remains a
significant difference in the scope of expropriation in Latin America. The post-
Enlightenment doctrinal gloss of social function marks the key difference. The United
States, with its longstanding, Enlightenment-era liberal constitution, and its reluc-
tance to revisit the 1789 text, has never had the opportunity to consider the inclusion
of social and economic rights in its constitution. Europe, Latin America, and most
other regions of the world, convulsed by war and revolution in the twentieth cen-
68 United States Constitution, amend V.

69 See, e.g., Haw. Housing Auth. v Midkiff, 467 US 229, 241 (1984) (stating that “where [expropri-
ation] is rationally related to a conceivable public purpose, the Court has never held a compensated
taking to be proscribed by the Public Use Clause.” A “public purpose” in U.S. jurisprudence regard-
ing expropriations may include the government taking land from a private party for use by another
private party as long as the primary motive behind the expropriation is the benefit to the public).
See, e.g., Kelo v City of New London, 843 A 2d 500, 522 (Conn 2004) (noting that “public use”
refers to the advantage gained by the public rather than strictly referring to public possession, use,
or occupation and that economic development alone may serve as a sufficient “public purpose” as
that term is used in the fifth amendment to the United States Constitution). Upon appeal of Kelo, the
United States Supreme Court reaffirmed the broadest possible interpretation of “public use” (Kelo
v City of New London, 125 S Ct 2655, 2669 (2005)).
70 Constitution of Argentina (Argentina), Article 17; Constitution of Bolivia (Bolivia), Article 22;
Constitution of Chile (Chile), Article 19(24); Constitution of Costa Rica (Costa Rica), Article 45.
The question of what qualifies as “public use” is very broad; this breadth may be part of the reason
that few international claims have focused on this aspect of expropriations (Restatement (Third) of
Foreign Relations Law 1987, § 712).
71 See, e.g., Constitution of Colombia (Colombia), Article 58; Constitution of Guatemala
(Guatemala), Article 40; Constitution of El Salvador (El Salvador), Article 106.

tury, have had ample opportunities to consider these so-called “second generation”
rights and incorporate them into twentieth-century constitutions. The property rights
provision of the constitution of the post-World War I German Weimar Republic suc-
cinctly captures this development, where, after guaranteeing the individual right to
own property, the governmental right to expropriate property, and the governmental
guarantee of indemnification for expropriated property, it characterizes property’s
social content (Garea 1997, 45).
Article 153 of the ill-fated inter-World War Weimar Republic Constitution suc-
cinctly states, “Property obliges. Its use must serve the good of the community”
(Garea 1997, 45). The constitution of Bolivia similarly includes both the utilidad
pública standard for expropriation, and the social function obligation of productive
use.72 This additional obligatory social good conception of property, distinct from
and additional to the traditional public purpose (or utilidad pública) expropriation
rationale, is qualitatively distinct from the liberal laissez-faire view of non-social
function states like the United States. However, even in the United States, land con-
centration has resulted in involuntary land redistribution as a means to promote the
public good.73 The following Part addresses the significance and historical necessity
of the social function obligation in Latin America.
9.3.2 Application of the Social Function Doctrine to Land

Reform in Latin America
In contrast to an expropriation standard that advances state interests when needed,

the Social Function Doctrine actually imposes two related sets of obligations (Garea
1997, 148). First, it imposes continuing, affirmative obligations on landowners to
ensure that their property use serves a social function or risk expropriation (Garea
1997, 148, 150). For example, echoing the early Weimar Republic expression of the
social function, article 58 of the Constitution of Colombia provides that “[p]roperty is
a social function which implies obligations.” Arguably, in the United States and other
non-social function states, a property owner is under no affirmative, enforceable duty
72 The Constitution of Bolivia (Bolivia), Article 7 states that “[t]oda persona tiene los siguientes
derechos fundamentales, conforme a las leyes que reglamenten su ejercicio: … i) A la propiedad

privada, individual y colectivamente, siempre que cumpla una función social” [“Each person has
the following fundamental rights according to the laws that regulate their exercise …. i) to private
property, either individual or collective, as long as the property serves a social fumction.” trans:
Thomas Ruppert]. Article 22 further states that “[s]e garantiza la propiedad privada siempre que el
uso que se haga de ella no sea perjudicial al interés colectivo … . II. La expropiacion se impone por
causa de utilidad pública o cuando la propiedad no cumple una función social.” [“Private property
is guaranteed as long as its use does not harm the collective interest … . II. Expropriation may
occur for reasons of public utility or when property fails to serve a social function.” trans: Thomas
Ruppert].
73 Haw. Housing Auth. v Midkiff, 467 US 229 (1984) (Upholding constitutionality of a Hawaii law
that takes title from lessors and transfers it to lessees as a way to decrease severe land ownership
concentration that was deemed detrimental to the public).
to ensure that her property fulfills some larger societal goal. In the United States, for
example, it is presumed that the market assures this. Secondly, the Social Function
Doctrine imposes a corresponding affirmative obligation on the state to expropriate
land not fulfilling its social function (Garea 1997, 150). For example, the Brazilian
constitution provides that it is incumbent upon the Republic “to expropriate for social
interest, for purposes of agrarian reform, rural property which is not performing its
social function”.74
By the middle of the twentieth century, the Social Function Doctrine had been
explicitly incorporated into most of the constitutions of Latin America.75 Even those
countries whose constitutions lack explicit reference to the term “social function”
include language that leaves little doubt as to the Doctrine’s existence, or at a mini-
mum, incorporates it into agrarian reform legislation and general property law doc-
trine.76 As the twentieth century progressed, the familiar pattern of land concentration
by elites progressed along with it. Reformers seized on property’s social function to
institute a new wave of agrarian reform aimed at breaking up persistent latifundios
and alleviating landlessness (Ankersen 2003, 809–810).
74 Constitution of Brazil (Brazil), Article 184; cf Constitution of Colombia (Colombia), Article 64 :

“Es deber del Estado promover el acceso progresivo a la propiedad de la tierra de los trabajadores
agrarios, en forma individual o asociativa … con el fin de mejorar el ingreso y calidad de vida de los
campesinos.” [It is an obligation of the State to promote progressive access to land for agricultural
workers, either individually or in association … with the goal of improving the income and quality
of life of the peasants.” trans: Thomas Ruppert].
75 See, e.g., Constitution of Argentina (Argentina), Article 38 (social function was subsequently elim-
inated in 1956 with the readoption of the 1853 constitution with reforms); Constitution of Bolivia
(Bolivia), Articles 7.1, 22, 165 (doctrine originally introduced in article 17 of the 1938 constitution);
Constitution of Brazil (Brazil), Article 5(0)XXIII; Constitution of Ecuador (Ecuador), Article 30
(added in article 183 of the 1946 constitution); Constitution of Chile (Chile), Article 19(24); Con-
stitution of El Salvador (El Salvador), Article 103 (added in article 137 of the 1950 constitution);
Constitution of the Republic of Honduras (Republic of Honduras), Article 103 (social function added
in article 157 of the 1957 constitution); Constitution of Nicaragua (1939) (Nicaragua), Article 5
(added in article 65 of the 1939 constitution); Constitution of Panama (Panama), Article 45 (social
function doctrine first added in 1947 constitution, article 47); Constitution of Suriname (Suriname),
Article 34; Constitution of Venezuela (Venezuela), Article 115 (implicit) (including phrase “social
function” explicitly in article 65 of the 1947 constitution but removing the phrase with adoption of
the 1999 constitution).
76 Peru, Guatemala, Costa Rica, Venezuela, and Mexico lack explicit reference to the doctrine in their
constitutions. Peru’s 1979 constitution previously referred to property’s social function (Palomino
1996, 61). The current Peruvian constitution does not explicitly impose positive obligations on
property owners; owners only need utilize land in accordance with law (Constitution of Peru (1993)
(Peru), Article 70). But see sources cited supra notes 141–145 and in text (discussing current
developments in Peru). Guatemala, which has some of the greatest land distribution inequity in the
world, removed the phrase “social function” from its 1998 post civil war constitution, but continues
to advocate the Doctrine in human rights sectors. Article 39 of the 1991 Constitution of Guatemala
provides: “Se garantiza la propiedad privada como un derecho inherente a la persona humana, toda
persona puede disponer libremente de sus bienes de acuerdo con la ley. El Estado garantiza el
ejercicio de este derecho y deberá crear las condiciones que faciliten al propietario el uso y disfrute
de sus bienes, de manera que se alcance el progreso individual y el desarrollo nacional en beneficio
de todos los guatemaltecos.” [“Private property is guaranteed as an inherent right of the person,
and every person may freely make use of such property within the confines of the law. The State
The 1917 Mexican Constitution and Duguit’s idea of social function were born
of the same social ferment, and Article 27 of the Mexican Constitution served as an
inspiration in Europe77 :
The Nation shall at all times have the right to impose on private property such limitations
as the public interest may demand, as well as the right to regulate the utilization of natural
resources which are susceptible of appropriation, in order to conserve them and to ensure a
more equitable distribution of public wealth. With this end in view, necessary measures shall
be taken to divide up large landed estates; to develop small landed holdings in operation; to
create new agricultural centers, with necessary lands and waters; to encourage agriculture
in general and to prevent the destruction of natural resources, and to protect property from
damage to the detriment of society. Centers of population which at present either have no
lands or water or which do not possess them in sufficient quantities for the needs of their
inhabitants, shall be entitled to grants thereof, which shall be taken from adjacent properties,
the rights of small landed holdings in operation being respected at all times.78
Article 27 further provides: “The federal and state laws, within their respective
jurisdictions, shall determine in what cases the occupation of private property shall be
considered to be of public utility; and in accordance with such laws, the administrative
authorities shall issue the respective declaration”.79 This would appear to constitute
a reversal of the presumption of laissez-faire deference to private property in favor of
a proactive state role in determining the status of property visa-a-vis its contribution
to social welfare.
Although the 1917 Mexican Constitution did not use the phrase “social func-
tion’” the concept is clearly implicit (Alfaro 1980, 80).80 Duguit’s doctrine has been
specifically incorporated into subsequent legislation and has found a place in Mex-
ican legal doctrine and jurisprudence as well. A 1928 revision to the Mexican civil
guarantees the exercise of this right and should create conditions that facilitate the ability of property
owners to use and enjoy their property in a manner that allows for individual growth and national
development in the interest of all Guatemalans.” trans: Thomas Ruppert].
[A]unque el término función social fue eliminado en el articulo 39 de nuestra Constitución
de Derecho, ese término, y el concepto que abarca, esta vigente en nuestra Legislación
por encima de dicha norma constitucional. [“Although the term social function has been
eliminated from article 39 of our constitution, this term and the concept it represents continue
to be effective in our legislation.” trans: Thomas Ruppert] (Pronunciamiento del Procurador
Sobre el Derecho Humano a la Propiedad Privada 1992, 36).
Costa Rica also does not refer to “social function” in its constitution, but nonetheless explicitly
added “social function” to its agrarian reform law. The president of Costa Rica rejected previous
versions of the law with more references to social function, reasoning that rejection of the phrase
“social function” in the constitution meant that the phrase in legislation contravened the constitution
(Alfaro 1980, 105–109).
77 For example, it appears that the 1917 Mexican Constitution and its elaborate treatment of property
influenced the 1931 Spanish Constitution (Domínguez Luis 1999).

78 Constitución Política de los Estados Unidos Mexicanos (Mexico), Article 27.
79 Constitución Política de los Estados Unidos Mexicanos (Mexico), Article 27.
80 It is hardly surprising that the 1917 Mexican Constitution did not use the phrase “social function”
since it was not until two years later, in 1919, did Leon Duguit use the term in his writing (Duguit
1919).
code described property “as a social function and not a subjective right.” The 1928
code’s characterization of property under the civil law as no longer subjective rep-
resents a dramatic departure from its treatment under the 1804 Napoleonic Code as
a matter of private or “subjective” law, bringing it into the realm of “objective” or
public law,81 substantially undermining the second of the two pillars of property’s
liberal era doctrinal foundation (Merryman 1968). A Mexican agrarian court put it
bluntly when it concluded that the grammatical, historical, logical, and systematic
interpretation of article 27 requires the conclusion that the right to property in Mexico
has been restricted and subjected to the public interest.82 In addition to court rulings
referring to the social function inherent in article 27 of the Mexican Constitution,
later Mexican law refers to the social function of land.83
Like most of Latin America, Brazilian colonial history resulted in large latifundios
(Colby 2003, 10–11). In contemporary Brazil about one percent of the population
in Brazil owns approximately forty-six percent of the land (Colby 2003, 1, 3). The
phrase social function first appeared in Brazilian law in the constitution of 1946, but
was largely ignored by the government until the end of military government in Brazil
in 1985 (Colby 2003, 11–12). In 1988 Brazil adopted a far-reaching new constitution
that made the state responsible for expropriating rural land not serving its social func-
tion.84 The new constitution includes seven explicit references to the social function
of property.85 Brazilian law considers that rural land serves a “social function” where
“80% of the surface is completely and effectively utilized; where appropriate use is
made of the natural resources, ecological and labor standards are respected, and the
use is considered to be of common benefit to land owners and workers”.86 Inter-
estingly, the 1988 Brazilian Constitution also requires urbanized land to conform
to its social function, and authorizes expropriation when urban land is not used in
conformance with constitutionally-mandated master plans for metropolitan areas.87
Brazil’s new constitution, as well as procedural forms that streamline judicial action,
coincided with the emergence of an organized squatter movement called the Movi-
mento dos Trabalhadores Rurais Sem Terra, or MST (Houtzager 2003). The MST is
aggressively pursuing organized land invasions of large landholdings while defend-
ing these claims in courts on the basis of the Social Function Doctrine (Houtzager
2003).
81 See Merryman (1968) for more information on the distinction between public and private law.
82 Sentencia 523/96 (judicio agrario, Mexico, published in the Diario Oficial de la Federación, 16
Jun 1998), sixth section under the heading “Considerando”. In this case, land was adjudged not
in fulfillment of its social function since the owner planted cannabis sativa (marihuana) on the
land. For cases presenting a similar scenario, see also Sentencia 489/96 (judicio agrario, Mexico,
published in the Diario Oficial de la Federación, 9 Jun 1998); Sentencia 525/97 (judicio agrario,
Mexico, published in the Diario Oficial de la Federacion, 11 Jan 1999).
83 Ley de Desarrollo Urbano del Distrito Federal (Mexico), Articles 2.II, 6.
84 Constitution of Brazil (Brazil), Article 184(0).
85 Constitution of Brazil (Brazil), Articles 5(0)XXIII, 156(1), 170(0)III, 182(2), 184(0), 185(1), 186.
86 Organization of American States (1997), Chap. VII, A.
87 Constitution of Brazil (Brazil), Article 182(2).
Colombia remains a regional leader in land concentration (Grusczynski and

Jaramillo 2003, 75), largely the result of the initial distribution of land during colo-
nization (Grusczynski and Jaramillo 2003, 76). Colombia first attempted land reform
in 1936 but largely failed (Deininger 2003, 147). In 1961, Colombia formed the
National Institute for Agrarian Reform and Frontier Settlement, and by the end of
the decade, land reform seemed poised to take off; however, a revolt by landowners
effectively scuttled this effort by 1972 (Grusczynski and Jaramillo 2003, 82). Those
familiar with Colombia assert that land distribution in Colombia has not progressed
since 1972 (Grusczynski and Jaramillo 2003, 82). In 1994, Colombia passed Law
160, designed to realize the State’s obligation to promote access to land.88 This lat-
est effort has apparently done little to improve the overall impact of land reform
(Deininger 2003, 147; Grusczynski and Jaramillo 2003, 82), undoubtedly hampered
by the country’s problematic low-grade civil war. Despite limited success in applica-
tion, however, Colombia does not want for doctrine or jurisprudence when it comes
to social function.
The phrase “social function” first appeared in the Colombian constitution in
193689 and has remained a staple of Colombian property law. The Social Func-
tion Doctrine in article 58 of the current Colombian constitution follows the positive
obligation approach to social function90 This obligation requires the use of land for
the benefit of the community and not just for the “exclusive and egotistical personal
benefit of the property owner,” as the Colombian Supreme Constitutional Court has
characterized it.91 The Constitutional Court has further stated that the Social Function
Doctrine
signifies a great advance in western thought related to two antagonistic positions that find
their conciliation in the social function: individualism and collectivism. The former negates,
or at least minimizes, the social and public character of the right to property; at the same
time, the latter rejects or diminishes the private and individual character that the right to
property may have. The doctrine of the social function of property establishes that the right
to property is simultaneously individual and social.92
The Social Function Doctrine of the Colombian Constitution imposes the positive
obligation of an owner to “use property not only in a way that does not prejudice
88 Law 160 (1994) (Colombia), Article 1.

89 Sentencia C-223/94 (Supreme Constitutional Court of Colombia), § IV; Sentencia C-389/94
(Supreme Constitutional Court of Colombia); Sentencia C-204/01 (2001) (Supreme Constitutional
Court of Colombia), §VII.17; Sentencia T-427/98 (Supreme Constitutional Court of Colombia), §
111.C.3; Sentencia C-157/97 (Supreme Constitutional Court of Colombia), § VI.2.A).
90 Constitution of Colombia (Colombia), Article 58; Sentencia C-223/94 (Supreme Constitutional
Court of Colombia), § IV.

91 Sentencia C-223/94 (Supreme Constitutional Court of Colombia), § IV; see also Sentencia C-
595/95 (Supreme Constitutional Court of Colombia), § VI.h; Sentencia T-427/98 (Supreme Con-
stitutional Court of Colombia), § III.C.3.
92 Sentencia C-238/97 (Supreme Constitutional Court of Colombia), § VI.3 [trans: Thomas Rup-
pert]; see also Sentencia C-428/94 (Supreme Constitutional Court of Colombia), § VII.4.
the community but that is beneficial to the community”.93 Failure of land to fulfill
its social function can result in expropriation, and at one point even the more dras-
tic remedy of uncompensated forfeiture was contemplated.94 Prior Colombian law
distinguished forfeiture of land for failure to fulfill social function from ordinary
expropriation under the public utility doctrine, and held that compensation would
not be required for social function forfeitures.95 However, in 1999, the legislature
of Colombia passed a law forbidding expropriation of land without paying com-
pensation.96 This law eliminated the paragraph in the constitution that allowed the
legislature to establish cases in which, due to considerations of equity, indemnifica-
tion would not be required to expropriate land. Even so, the Supreme Constitutional
Court of Colombia has continued to emphasize how different the 1936 and 1991
Constitutions treated property when compared with the liberal-era 1886 Constitu-
tion.97 The court used these differences to justify reforming the 1887 Colombian
Civil Code, which allowed for the “arbitrary” disposition of property.98 The court
found the use of the term “arbitrary” in conflict with property’s social function and
ordered it stricken.99
Venezuela, with its recently elected populist government under the leadership of
Hugo Chávez, presents an interesting case. In Venezuela, sixty percent of the arable
land belongs to two percent of the population, making land reform a high priority
of the Chávez government (Andersen 2004, 9). In 1999, Chávez supported a new
constitution for the country (Andersen 2004, 1). Up until that point, the constitution in
effect since 1961 had explicitly included a provision concerning the social function of
property.100 The new constitution eliminated the phrase “social function,” and instead
created an expropriation standard based on “public utility or social interest.”101 In
the absence of the public record that evidences the rationale for this change, it would
93 Sentencia C-389/94 (Supreme Constitutional Court of Colombia), § VII.2 [trans: Thomas Rup-
pert]; see also Sentencia C-595/95 (Supreme Constitutional Court of Colombia), § VI.h.
94 Sentencia C-389/94 (Supreme Constitutional Court of Colombia), § VII.3.
95 Ibid. While forfeiture of land may occur when ownership is a result of illegal activities or enrich-
ment (Sentencia C-389/94 (Supreme Constitutional Court of Colombia), § VII.3), forfeiture for
failure to fulfill the social function is much broader than penal offenses leading to forfeiture (Sen-
tencia C-409/97 (Supreme Constitutional Court of Colombia), § VI.2).
96 Acto Legislativo 01 (1999) Diario Oficial ano XCCV. N. 43654, 49.
97 Sentencia C-595/99 (Supreme Constitutional Court of Colombia), § VI.B.2.
98 Sentencia C-595/99 (Supreme Constitutional Court of Colombia), § VI.B.2.
99 Sentencia C-595/99 (Supreme Constitutional Court of Colombia), § VI.B.2, VI.C.
100 Constitution of Venezuela (1961) (Venezuela), Article 99. The 1961 constitution provided:
The right to property is guaranteed. In virtue of its social function, property will be subjected
to the contributions, restrictions, and obligations established by laws designed to further
public utility and the general interest. [Se garantiza el derecho de propiedad. En virtud de su
funcion social la propiedad estardi sometida a las contribuciones, restricciones y obligaciones
que establezca la ley con fines de utilidad publica o de interes general.].
101 The 1999 Venezuelan constitution states that “[p]roperty will be subjected to the contributions,
restrictions and obligations established by law to promote public utility or the general interest. Only
appear that the Social Function Doctrine is alive and well in Venezuela, perhaps
embedded in the associated phrase “social interest.” Evidence of this appears in
a 2001 presidential decree specifying that private lands are “subject to the social
function of providing for the agro-alimentary security of the country”.102 When
he signed the decree into law, Chávez said that “the war against latifundios is key
to the revolution” (Brodzinsky 2005). The decree gives squatters the right to stay
on land that they occupied as idle land until the state can expropriate the land.103
The decree also gives any citizen the right to report idle or uncultivated land to the
government.104 Idle land is defined as land that fails to produce at least eighty percent
of its appropriate agricultural output.105
For historical and geographical reasons, Costa Rica’s relatively egalitarian land
distribution pattern stands out when compared to the rest of the region (Perez-Brignoli
1989, 99,121). Even so, it did not escape the doctrinal influences of social consti-
tutionalism, including the social function of property. The current constitution of
Costa Rica, among the region’s oldest (1949), also lacks explicit reference to social
function. However, the 1961 Land and Colonization Law provides that “expropria-
tion will be realized in the first place over those lands that do not comply with their
social function”.106 The statute goes on to describe instances where social function
is not met and the state may order expropriation.107 Possibly affected lands include
certain unimproved lands, lands acquired for speculation and subdivision that have
not subsequently been developed or whose development does not comply with per-
tinent laws, and agricultural lands used for cattle ranching (e.g., haciendas).108 A
separate provision authorizes anyone to denounce lands that do not conform to the
social function, creating a third-party right to induce expropriation.109
This brief review of the Social Function Doctrine in selected Latin American
nations demonstrates that the doctrine and its historical necessity as a means to
address land concentration are alive and well in the region. The doctrine would
appear to have weathered a trend toward neoliberal governance in Latin America,
and found new life in recently elected populist governments in Brazil, Bolivia, and
Venezuela. Moreover, the emergence of independent judiciaries and their recorded
jurisprudence has provided an opportunity to explore more fully its application, and
gain greater insight into the extent to which it is deeply rooted in legal doctrine and
for public utility or social interest, determined by a court judgment and timely payment of just
compensation, may any type of property be expropriated” (Constitution of Venezuela (Venezuela)).
102 Presidential Decree No 1546 2001, Article 2(5), 18.
103 Presidential Decree No 1546 2001, Article 2(5).
104 Presidential Decree No 1546 2001, Article 37.
105 Presidential Decree No 1546 2001, Article 106–107.
106 Ley de Tierras y Colonizacion, Law No 2825 1961 (Costa Rica). The law also protects small
agricultural plots from any sort of expropriation if they currently fulfill their social function: Article
142.
107 Ibid. Article144.
108 Ibid.
109 Ley de Tierras y Colonizacion, Law No 2825 1961 (Costa Rica), Article 6.
political philosophy in the region. At the same time, in Latin America the notion
of property’s social function is inextricably tied to agrarian reform, an imperative
which has diminished in some countries in the region.
9.4 Recent Developments and Challenges to the Social

Function Doctrine
Throughout the twentieth century, the Social Function Doctrine has served, both
explicitly and implicitly, as the juridical basis to justify drastic measures to restructure
land policy in Latin America through agrarian reform. At the same time the Doctrine
has served as an engine of development policy, used to settle the “tierras baldías”
the vast, forested “wasteland,” (cf. Schneiderman 2000, 93)110 which policy makers
viewed as safety valves in which to release the growing masses of landless peasants
marching to the urban megacities of the region (Leonard 1987). The confluence of
human rights and environmental concerns in the 1980 and 1990s challenged these
policies. At the same time, the growing impetus toward a hemispheric free trade
agreement and the neoliberal “commoditization” of property continues to challenge
social notions of property. Here we explore some contemporary developments in the
Social Function Doctrine and its current application to land policy.
9.4.1 The International Human Rights Dimension

of the Social Function Doctrine
The eighteenth-century liberal constitutional right to be free from arbitrary state

interference with an individual’s property did not impose positive obligations on the
state to provide individuals with land, or on individuals to ensure that their land
was used for productive purposes. In the liberal constitutional model, the market
takes care of land redistribution and ensures its productivity. In contrast, the social
constitutional model obliges property owners to utilize property productively and
for socially beneficial purposes, and obliges the state to ensure that this occurs.
This positive duty of the state to intervene in private property relations to ensure its
social function fits within the paradigm of what human rights scholars call “second
generation rights.”111 Second generation rights are generally considered to be social
110 Noting that Colombia used “social function” as a justification for settling “seemingly empty and
unproductive lands”.
111 An essential difference between first—and second-generation rights is that second generation
(i.e., social and economic rights) rights require states to take affirmative, active steps to promote
and secure these rights since state inaction is insufficient (see, e.g., Bossuyt 1992—noting that civil
rights primarily require state abstention from action whereas social rights require active intervention
from the State). First generation rights are most often thought of as limitations on state action to
and economic rights, rights inuring to the benefit of all society that the state is obliged
to promote (Lynch and Maggio 1998).
The difference between the “right to property” in liberal property-rights systems
such as the United States112 and the social function of property in the social consti-
tutional systems of some European and most Latin American countries can be seen
in two key twentieth-century international human rights accords: the International
Covenant on Civil and Political Rights (ICCPR)113 and the International Covenant on
Economic, Social, and Cultural Rights (ICESC).114 . The United Nations charter envi-
sioned a single declaration of general human rights principles followed by a single
convention on their implementation (Pocar 1995, 140–141; Sellars 2002, 76). While
the United Nations Universal Declaration on Human Rights115 enjoyed broad interna-
tional support (Sellars 2002, 21, 23), a split occurred among the world’s nation-states
regarding a covenant for implementation of the Declaration (Sellars 2002, 23, 74,
79). Many developed nations, led by the United States, wanted a “negative rights”
document, analogous to the United States Bill of Rights, which grants rights to be
free from government interference (Davidson 1993, 6).116 Developing states, how-
ever, were more concerned about positive social rights that require the government to
affirmatively provide certain rights or goods to the people (Eide 1992, 460–461).117
What eventually emerged were two separate human rights documents (Sellars 2002,
ensure individual rights. According to one well-known Costa Rican jurist, the difference between
the classic, first generation right to property and its second generation expression may present
itself more clearly in Spanish than it does in English. In Spanish, the first-generation right is best
expressed as “derecho de propiedad” whereas in the American Declaration, the second-generation
right is expressed as the “derecho a la propiedad” (Zeledon 2002, 30). At the same time, others
assert that the distinctions between first and second generation human rights are blurring (Stanley
1997).
However, many assert that to divide first and second generation rights between those that are
“negative” versus “positive” fails to take account of the fact that some first generation rights (such
as that to a speedy trial) require a substantial positive investment on the part of the state whereas
some second generation rights (such as the right to unionize) require little expenditure on the part
of the state (Dowell-Jones 2004, 4).
112 The United States is often held up as an example of the state most protective of private property
rights (cf. van der Vyver 1985, 125–126).

113 Dec. 16, 1966, 999 U.N.TS. 171, 6 I.L.M. 368 (1967); G.A. Res. 2200, 21 GAOR, Supp. No.
16, at 52, U.N. Doc. A/6316) (1976).

114 Dec. 16, 1966, 993 U.N.TS. 3, 6 I.L.M. 360 (1967) (Annex to G.A. Res. 2200, 21 GAOR, Supp.
No. 16, at 490, U.N. Doc. A/6316 (1976)).

115 Universal Declaration of Human Rights, G.A. Res. 217A(III), at 71 (Dec. 10, 1948).
116 Noting that American, French, and English revolutions primarily focused on “right to be free
from” rather than the “right to”.

117 This split again showed itself in 1974 when the United Nations General Assembly voted on the
Charter of Economic Rights and Duties of States (Restatement (Third) of Foreign Relations Law
1987, § 712, reporter’s note 1). This allowed that states have the right “to nationalize, expropriate or
transfer ownership of foreign property” (Restatement (Third) of Foreign Relations Law 1987, § 712,
reporter’s note 1). The United States and five other developed states voted against the Charter while
one hundred-twenty, mostly developing nations, voted in favour (Restatement (Third) of Foreign
Relations Law 1987, § 712, reporter’s note 1).
79). In fact, the United Nations, in an effort to secure broad support, specifically
avoided the controversial topic of property in both of these global covenants (van
der Vyver 1985, 129).
The American Convention on Human Rights, the binding human rights charter
for most of the states in the Western Hemisphere, would appear to encompass both
the individual and the social aspect of the right to property. Article 21 provides that
“[e]veryone has the right to the use and enjoyment of his property. The law may
subordinate such use and enjoyment to the interest of society.”118 Other regional
human rights agreements also use similar language.119
Another source of emerging international law on the Social Function Doctrine
comes from the European Court of Justice (ECJ), which has held that, by virtue of its
inclusion in the constitutions of most of the member states of the European Union,
the Social Function Doctrine represents binding European law.120 In the ECJ and
its member countries, the doctrine appears to have been used primarily to justify
state regulation of property in the face of claims relating to the infringement of the
right to property under European Community law.121 In this sense it appears more
analogous to the public health, safety and welfare police power basis for regulation
in the United States.122 This is a markedly different application of the doctrine than
the positive obligation it imposes on landowners in Latin America to productively
use their property to benefit society. By the time the Social Function Doctrine had
found its way into European legal thought, the urgency for land reform felt in Roman
times had diminished whereas in Latin America the two impulses converged.
118 Organization of American States, American Convention on Human Rights, Nov. 22, 1969,
O.A.S.T.S. No. 36, 1144 U.N.T.S. 123 (entered into force July 18, 1978). The United States has
signed but not ratified the American Convention on Human Rights. It has signed and ratified the
American Declaration of Human Rights which provides that “[e]very person has a right to own such
private property as meets the essential needs of decent living and helps to maintain the dignity of the
individual and of the home.” American Declaration of the Rights and Duties of Man, Article XXIII,
OEA/ser. L./ V/11.23, doc. 21, rev. 6 (1948) [hereinafter American Declaration]. This Declaration
was approved in 1948 at the 9th International American Conference in Bogotá, Colombia.
119 1952 Protocol to the 1950 European Convention on Human Rights, http://www.hri.org/docs/
ECHR50.html (“Every natural or legal person is entitled to the peaceful enjoyment of his pos-
sessions…. The preceding provisions shall not, however, in any way impair the right of a State
to enforce such laws as it deems necessary to control the use of property in accordance with the
general interest.” (emphasis added)). Article 14 of the African Charter on Human and Peoples’
Rights reads: “The right to property shall be guaranteed. It may only be encroached upon in the
interest of public need or in the general interest of the community and in accordance with the pro-
visions of appropriate laws.” African [Banjul] Charter on Human and Peoples’ Rights, OAU Doc.
CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), adopted June 27, 1981, entered into force Oct. 21,
1986, http://wwwl.umn.edu/humanrts/instree/z lafchar.htm (emphasis added).
120 Liselotte Hauer v Land Rheinland-Pfalz (C-44/79) [1979] ECR 3727.
121 Liselotte Hauer v Land Rheinland-Pfalz (C-44/79) [1979] ECR 3727, [18]-[19]; The Queen v
Secretary of State for the Environment (C-293/97) [1999] ECR I-02603, [54]; Schrader v Haupt-
zollamt Gronau (C-265/87) [1989] ECR 2237, [78].
122 Village of Euclid, Ohio v Ambler Realty Co, 272 US 365, 395 (1926).
9.4.2 Accommodating “Sustainable Development”:

Ecological Possession and the “Socio-environmental
Function” of Land
As the Social Function Doctrine was incorporated into the constitutions, civil codes,
and agrarian reform statutes of Latin American countries, there arose a need to deter-
mine when property served its social function. Typically a landowner demonstrated
social function through “productive use,” which in an agrarian sense meant clearing
and cultivating land (Garea 1997, 152).123 If a property owner allowed arable land to
remain fallow, the landowner risked not only invasions by squatters, but expropriation
under the Social Function Doctrine.124 In contemporary Latin America, this led ratio-
nal landowners to seek to clear their land in order to ensure possession, demonstrate
ownership by fencing and acquiring cattle and then seeking title (Ankersen 2003,
810; Fearnside 2001, 1368–1369). An unintended consequence of this development
policy founded on social function has been massive deforestation of some of the last
remaining tropical forests in the region (Fearnside 2001, 1369). Thus, “productive
use” to demonstrate “possession” included the creation of massive cattle ranches
on forested frontiers (Fearnside 2001, 1362). This perverse policy compounded the
problem of land concentration in the region, contributed to conflicts in the region
with “unproductive” occupants such as indigenous peoples and traditional societies,
and resulted in alarming rates of deforestation in some countries (Schmink and Wood
1992).
As the nations of Latin America began to realize the consequences of settlement
on the agricultural frontier, efforts were taken to redefine “social function” in a
manner that accommodates, among other state interests, the “ecological function”
of property. Colombia125 ; Chile,126 Costa Rica (Ankersen 2003, 811–812), Mexico
(Environmental Law Institute et al 2003, 144),127 and Brazil have all altered their
interpretation of social function to accommodate the ecological function of land. As
123 Citing several Spanish laws imposing the cultivation obligation on agricultural property owners,
dating back to the Franco regime). Colina Garea also cites a number of other Spanish and Italian
commentators for this proposition.
124 See, e.g., supra Part 3.2.
125 Constitution of Colombia (Colombia), Article 58: “La propiedad es una funcion social que
implica obligaciones. Como tal, le es inherente una funcion ecologica.” [“Property has a social
function which implies obligations. As such, land has an inherent ecological function.” trans:
Thomas Ruppert]; Colombian Law 338 (1997), Articles 2(1), 3(2)).
126 Constitution of Chile (Chile): “Sólo la ley puede establecer el modo de adquirir la propiedad,
de usar, gozar y disponer de ella y las limitaciones y obligaciones que deriven de su función
social. Esta comprende cuanto exijan los intereses generales de la Nacion, la seguridad nacional, la
utilidad y la salubridad públicas y la conservación del patrimonio ambiental.” [“Only the law may
establish the modes of acquiring, using, enjoying, and disposing of property as well as the limits
and obligations that derive from property’s social function. This includes requirements to serve the
general interests of the Nation, national security, public utility and health, and conservation of the
nation’s environmental patrimony.” trans: Thomas Ruppert].
127 “Mexican law no longer threatens the expropriation of land if adequate social ‘use’ is not made.”
a result, one can demonstrate “possession” and “productive use,” and hence-social
function-through the conservation of land, as well as its cultivation” (Ankersen 2003,
810).
This postmodern development, the ecological function of property, also now
serves to justify environmental and land use controls to protect the environment
in a manner similar to social function’s use in Europe. For example, in 1994, the
Colombian Supreme Constitutional Court applied the Social Function Doctrine to
forbid a land use that contaminated an otherwise clean source of municipal drinking
water.128 The court said that the State bears the responsibility to protect the consti-
tutional right to a healthy environment.129 The State has authority to do this since
the “inherent ecological function” of the Social Function Doctrine130 means that a
private property owner cannot abuse the right to private property by engaging in a
use of property that damages a public resource.131
Brazil offers a more sweeping example of the current use of the Social Function
Doctrine. In addition to social function encompassing ecological aspects, it has also
evolved to include the notion that productive use of land must not only respect its
ecological function, but also promote respect and dignity for rural workers (Baptista
2002). This broadened conception of social function has been termed the “socio-
environmental function” of land (Baptista 2002). According to one commentator, it
not only explicitly rejects the notion that use of land to produce revenue guarantees
a fulfillment of land’s social function, but even goes so far as to realize that some
economically beneficial activities of land may actually undermine the social function
of land (Baptista 2002).132 Brazil has further pushed the envelope of Social Function
Doctrine by giving it meaning in an urban context.133 Vacant buildings in metropoli-
tan Sao Paulo, for example, may be subject to expropriation for not fulfilling their
social function.134
128 Sentencia T-523/94 (Supreme Constitutional Court of Colombia).

129 Sentencia T-523/94 (Supreme Constitutional Court of Colombia), II.2.C.3: The court there
referred to article 366 of the Colombian Constitution ([“The general well-being and improvement
of the quality of life of the population are social purposes of the state.” trans: Thomas Ruppert
trans]).
130 Constitution of Colombia (Colombia), Article 58.
131 Sentencia T-523/94 (Supreme Constitutional Court of Colombia).
132 Using example of a landowner deforesting land, polluting waterways, causing erosion, exces-
sively using agrochemicals, employing laborers under slave-like conditions with no worker guar-
antees in order to produce a monoculture exclusively for export and that does not promote accrual
of any benefit in the form of essential needs for the community. See also Fernandes (2001), praising
the Brazilian constitution’s definition of “social function” as a way to overcome the outdated civil
code that “views land and property rights almost exclusively in terms of the economic possibilities
granted to individual owners, allowing little room for socially oriented state intervention aimed at
reconciling different interests over the use of land and property”.
133 Constitution of Brazil (Brazil), Article 182.
134 Constitution of Brazil (Brazil), Article 182(4)III.
9.4.3 Challenges to the Doctrine from the Trade Regime:

Social Function and Regulatory Expropriation
In addition to covenants, human rights treaties, and cases that apply them, other inter-
national laws related to trade are beginning to have a significant role in defining the
right to property at the international level (Poirier 2003, 873–874; cf. Garcia 2004).135
Key recent international law cases to protect investors focus on the need to pay com-
pensation (Poirier 2003, 852–853). This could present a significant change because it
tends to interject multinational non-state corporate interests into the domestic devel-
opment of policy and law helping to define property rights (Meidinger 2003, 29–31;
Garcia 2004, 305 n 4). Indeed, at least in Mexico, history suggests that the signifi-
cance of the Social Function Doctrine has not been lost on corporate property inter-
ests (Castillo 1987, 23–24136 ; Schneiderman 2000). The contemporary emergence
of trade agreements intended to level the playing field for international investors
may reawaken this discussion, especially in the face of national policies in Latin
America that prohibit treating foreign investors more favourably than their domestic
counterparts.137
A recent case under the North American Free Trade Agreement (NAFTA) may
presage the development of investor-state disputes over the nature of government con-
trol of private property. In Metalclad v United Mexican States, arbitration held that
the government of Mexico had to pay compensation to a United States corporation
because Mexico’s actions were “tantamount” to an expropriation and NAFTA forbids
this without compensation.138 The tribunal noted that Mexico’s laws lacked the trans-
parency and clarity that NAFTA seeks in order to protect international investors139 ;
and that local denial of a building permit and state decree of an ecological preserve
that permanently prevented completion of a hazardous waste landfill at the heart of
the case amounted to an expropriation.140
Because of the complicated procedural nature of the case under Mexico’s federal
system, it did not squarely present the question of whether the regulation of private
property for environmental purposes to the extent that all economically beneficial
135 Noting the dramatic increase of litigation over regulations through use of NAFTA’s chapter 11
investor-protection rules and similar rules in the rapidly expanding world of bilateral investment
treaties.
136 Noting that private associations as well as the Secretary of Foreign Relations and the Secretary of
Commerce and Industry strongly objected in 1928 to the idea that a landowner had the responsibility
to ensure that her or his enjoyment of property also served a social function.
137 This is known as the “Calvo doctrine,” named after an Argentine diplomat and writer, which
states that a foreigner shall not be entitled to greater legal protection than nationals of a country
(Restatement (Third) of Foreign Relations Law 1987 (United States), § 713 cmt g, reporter’s note
6; Schneiderman 2000, 89–90). The United States has never recognized the validity of the Calvo
doctrine, and its legal status is uncertain at the international level (Restatement (Third) of Foreign
Relations Law 1987 (United States), § 713 cmt g, reporter’s note 6).
138 Metalclad v United Mexican States (2001) 40 ILM 36, 50.
139 Id 49 [88], 50 [99].
140 Id 51 [111].
use has been removed would be “tantamount to expropriation” under NAFTA law.
However, it is not difficult to imagine a contemporary interpretation of the “social
function of property” under domestic law that would uphold the right (and obliga-
tion) of the state to regulate the use of private property in order to ensure that its
environmental function is maintained, even if it deprived the owner of all economic
use. Such an analysis would require an inquiry into the domestic jurisprudence of
regulatory expropriation, an area of comparative law that appears to have received
little attention.
9.4.4 The Social Function Doctrine in the Neoliberal Era
The 1980s has been characterized as “the lost decade” by Latin American histo-
rians, an era characterized by economic stagnation and social and political unrest
(cf. Thiesenhusen 1995, 2, 3–4, 21). Globally, the second half of the decade wit-
nessed the collapse of the Soviet Union and the discrediting of the socialist state (cf.
Thiesenhusen 1995, 4, 14). In the 1990s, neoliberal ideology emerged triumphant and
profoundly influenced legal and political developments in the region (Thiesenhusen
1995, 13–15). Bilateral donors and multilateral lending institutions such as the World
Bank and International Monetary Fund held cash-starved Latin American govern-
ments hostage to “structural adjustment” and privatization policies and encouraged
legal reforms to back these policies (cf. Thiesenhusen 1995, 13–15). Some coun-
tries, like Nicaragua and Guatemala had recently emerged from civil wars and were
in a position to consider constitutional reforms. Others, like Mexico and Chile, were
embarking on economic expansion and seeking to modernize their economies to
support free trade agreements that might ultimately lead to a hemispheric free trade
agreement of the Americas (Thiesenhusen 1995, 4, 162).
In 2000, the Peruvian scholar Hernando DeSoto authored an influential work
entitled “The Mystery of Capital: Why Capitalism Works in the West and Fails
Everywhere Else” (de Soto 2000). The book argued that the region’s land policy
was outdated and failed to promote land markets, which served as the engine of
capital formation in developed countries (de Soto 2000, 164–171). The World Bank
and other multilateral lending institutions began to promote “market-assisted land
reform” as an alternative to expropriation (Aiyar et al. 1995).141 These developments
all provided opportunities for Latin American nations to consider the contemporary
relevance of the Social Function Doctrine. Given these opportunities, we identified
two Latin American countries that eliminated the Social Function Doctrine from
their constitutions. In other cases, however, more ambiguous results emerged.
Peru stands as an excellent example of a 1990s neoliberal government that effec-
tively eliminated the Social Function Doctrine from its constitution. The Social Func-
141 This focus has led to intense criticism of market-assisted land reforms (Borras 2003).
tion Doctrine first appeared in Peru’s 1920 constitution,142 and was maintained in
its 1933 Constitution.143 The 1979 Constitution adopted the term “social interest”
but its understanding appears to be the same, including the familiar Weimar refrain
that “property obliges”.144 The year 1993 marked the rise of Alberto Fujimori and
neoliberalism in Peru and a new constitution was drafted. The 1993 constitution
dropped the obligation language from its property clause and provides simply that
“property is exercised in harmony with the common good and within the confines
of the law”.145 Thus in Peru the role of property apparently went from the social
constitutional model of “positive obligation” to the neoliberal model of a “negative
obligation” to not use land in violation of the law. The Social Function Doctrine, how-
ever, dies hard. Since the flight of Fujimori and Montesinos from Peru, the Social
Function Doctrine again is the law of the land.146
Mexico, where the Social Function Doctrine has its Latin American roots, presents
another case of the effect of neoliberal thought on the constitutional support for the
Social Function Doctrine. In 1992, Mexican president Salinas de Gortari signed a
decree that modified article 27 of the Mexican constitution.147 The changes elimi-
nated a requirement of use or exploitation from the legal definition of small, rural land
holdings protected from expropriation.148 More than one commentator has suggested
142 Constitución de la República de Perú Article 38 (1920) (“La propiedad, cualquiera que sea
el propietario, está regida exclusivamente por las leyes de la República y se halla sometida a
las contribuciones, gravámenes y limitaciones que ellas establezcan.” [“Property, regardless of its
owner, is regulated exclusively by the laws of the Republic and is subject to all contributions,
burdens, and limitations established by law.” (Thomas Ruppert trans.)]).
143 Constitution of Peru (1933), Article 31.
144 Constitution of Peru (1979) (Peru), Article 124: “La propiedad obliga a usar los bienes en armonía
con el interés social. El Estado promueve el acceso a la propiedad en todas sus modalidades. La
ley señala las formas, obligaciones, limitaciones y garantias del derecho de propiedad.” [“Property
obliges its use in harmony with the social interest. The State promotes access to all forms of
property. The law determines the forms, obligations, limitations, and guarantees of the right to
property.” trans: Thomas Ruppert trans].
145 Constitution of Peru (1993) (Peru), Article 70.
146 Sentencia 0048-2004-PI/TC (2005) (Peruvian Constitutional Tribunal). This decision notes:
When our Constitution guarantees the inviolable right to property and indicates that this
right should be exercised in harmony with the public good and within the limits of the law,
the Constitution does nothing more than refer to the social function that the law of property
has as part of its essence. [78] (emphasis added).
147 Decretopor el que se reforma el artículo 27 de la Constitución Política de los Estados Unidos
Mexicanos (1992) (Mexico) Diario Oficial de la Federación.
148 Language before January 3, 1992, decree (published Jan. 6, 1992):
XV. Las comisiones mixtas, los gobiernos locales y las demás autoridades encargadas de las
tramitaciones agrarias, no podrán afectar, en ningún caso, la pequeña propiedad agrícola o
ganadera en explotación e incurrirán en responsabilidad, por violaciones a la Constitución,
en caso de conceder dotaciones que la afecten.
Se considerará pequeña propiedad agrícola la que no exceda de cien hectáreas de riego o
humedad de primera o sus equivalentes en otras clases de tierras en explotación.
this means that article 27 no longer contains the positive obligations of productive use
of land traditionally included in the Social Function Doctrine.149 These changes have
been directly attributed to a desire to conform the constitution and laws of Mexico to
the neoliberal model to facilitate free trade agreements such as NAFTA (Grammont
1996). Such changes have prompted strong criticism as well as calls for continued
adherence to the Social Function Doctrine in Mexico (Grammont 1996).150 This may
also indicate that Mexico is now more willing to abandon its traditional claim that
expropriations due to land reform may be compensated at levels less than that of
other types of expropriation.151
Other countries undertaking constitutional reforms have not eliminated the lan-
guage of social function but have altered its language. For example, Nicaragua first
[“The joint commissions, local governments, and other authorities in charge of procedures
related to agricultural land may in no case expropriate small farms or cattle ranches THAT
ARE ACTIVELY BEING EXPLOITED; any authorities that grant titles that conflict with
such lands will be held responsible for constitutional violations.
A small agricultural property is one that does not exceed 100 hectares of irrigated or moist
soils or the equivalent in other classes of soils.” trans: Thomas Ruppert] (Constitution of
Mexico (1917) (Mexico), Article 27.XV).
Language after 3 January 1992 decree (published 6 January 1992):
XV. En los Estados Unidos Mexicanos quedan prohibidos los latifundios.
Se considera pequeñia propiedad agrícola la que no exceda por individuo de cien hectáreas
de riego o humedad de primera o sus equivalentes en otras clases de tierras.
[“Latifundos are prohibited in the United Mexican States.
A small agricultural property is one that does not, per person, exceed 100 hectares of irrigated
or moist soils or the equivalent in other classes of soils.” trans: Thomas Ruppert trans]
(Constitution of Mexico (1917) (Mexico) with 3 Jan 1992 reforms, Article 27.XV).
149 Arguing that exclusion of the phrase “in use” from subpart XV of article 27 of the constitution
indicates that landowners are now free to either use their rural lands or leave them idle [trans:
Thomas Ruppert] (cf. Constitution of Mexico (1917) (Mexico), Article 27.XV with Constitution of
Mexico (1917) (Mexico) with 3 Jan 1992 reforms; see also Grammont 1996).
150 One might easily see these reforms by Salinas as a way to heal the rift that began in 1938 when,
after expropriations in Mexico affecting U.S. interests, the United States insisted that international
law requires “prompt, adequate and effective compensation” (Restatement (Third) of Foreign Rela-
tions Law 1987 (United States), § 712, reporter’s note 1). Mexico, however, insisted that international
law only required that foreigners be treated equally with nationals (Restatement (Third) of Foreign
Relations Law 1987 (United States), § 712, reporter’s note 1).
151 Restatement (Third) of Foreign Relations Law 1987 (United States), § 713, reporter’s note 3:
noting that Mexico and the United States began a disagreement in 1938 about the compensation
necessary for expropriations motivated by land reform.
introduced the phrase social function into its constitution in 1939,152 which was
retained by the 1950 constitution.153 The Sandinista Constitution of Nicaragua of
1987 (Manchego 2003, 13) further strengthened the social function of land.154 The
1993 reforms modified the social function language in Nicaragua’s constitution,155
but the import of such changes would require in-depth research into the domestic
laws and court decisions in Nicaragua.
Thus, despite some inroads, the Social Function Doctrine remains a powerful
force in the region, especially in countries such as Brazil,156 Colombia,157 and
Venezuela,158 where the promise of agrarian reform has never been realized and
inequitable land distribution remains a fact of economic and social life.159 In Brazil
and Venezuela the resurgence of populist governments bent on completing the unfin-
ished business of land reform has breathed new life into the moribund application of
the Doctrine. The World Bank has been encouraged to recognize the continuing role
that the Social Function Doctrine has to play in land reform (de Janvry and Sadoulet
2002, § 6.2). And even the neoliberal model of Peru seems unwilling to bid a final
farewell to the Social Function Doctrine.
9.5 Conclusion
A major work by a Spanish author begins, with feigned exasperation, by asking:

“Another book on the social function of property?” (Garea 1997, 11). To English-
language legal scholars, this apparent need for Spanish-language legal scholars to
justify delving into what is apparently well-traveled ground in the civil law comes
as a complete surprise. Our research yielded a marked paucity of English-language
legal literature concerning a doctrine that apparently fascinates our Latin American
152 Article 65 of the 1939 constitution observed, “Property, by virtue of its social function, imposes
obligations” (Constitution of Nicaragua (1939) (Nicaragua), Article 65).
153 Constitution of Nicaragua (1950) (Nicaragua), Article 65.
154 Constitution of Nicaragua (1983) (Nicaragua), Article 103: “El Estado garantiza la coexistencia
democrática de las formas de propiedad pública, privada, cooperativa, asociativa y comunitaria;

todas ellas forman parte de la economía mixta, están supeditadas a los intereses superiores de
la Nación y cumplen una función social.” [“The State guarantees the democratic coexistence of
public, private, cooperative, associative, and community-based forms of property; all these forms
of property form part of the mixed economy and are subject to the superior interests of the Nation
and serve a social function” trans: Thomas Ruppert].
155 Constitution of Nicaragua (1993) (Nicaragua), Articles 5, 44.
156 See supra notes 82–87, 130–132 and accompanying text.
157 See supra notes 88–97, 127–129 and accompanying text.
158 See supra notes 98–103 and accompanying text.
159 Other Latin American countries also sometimes seem reluctant to alter application of the Social
Function Doctrine and the substantive differences it creates in laws regarding expropriation. For
example, in Chile a government subcommittee expressed the belief that any imposition on land pro-
voked by application of the Social Function Doctrine does not require indemnification (Marinkovic
2004).
and continental European counterparts in the civil law. We find it remarkable that
a doctrine so fundamental to private and public law in many countries in the world
has received so little attention in comparative legal literature in the United States.
When it is addressed, it is usually in passing in historical and development literature
on agrarian reform. This is even more remarkable given the way that this doctrine
helps illuminate divergent political and social philosophies over the role of land in
society, philosophies that have spawned revolutions, affected development and may
ultimately have profound effects on international and comparative law in a globalized
world.
In Europe, the Social Function Doctrine appears to have developed as a response
to the Napoleonic-era liberal bias of the private law governing property, and in the
broader context of the emergence of the bureaucratic state and the discourse of
socialism on the continent. Its actual application to state-individual property relations
appears more nuanced, and appears to focus more on the state right to regulate private
property. In developing Latin America, however, the utility of the doctrine has been
more apparent, and its use more heavy-handed. There, the Social Function Doctrine
justifies state intervention to correct one of the abiding truths of the region, the
inequitable distribution of land made all the more stark by unrelenting poverty and
concomitant landlessness.
Despite the abundance of foreign language literature on the “social function of
property” its contours remain obscure and its character evolutionary. This may be
attributed to the nature of the civil law, and the absence of precedential jurisprudence
by courts, leaving scholars with the task of interpreting the phrase, but providing little
in the way of application of the doctrine to specific facts. And it may be attributable
to our own legal cultural bias and lack of training in the civil law tradition. Clearly,
however, the doctrine sits as an overlay on the civil law of property that cannot be
explained simply as another way to rationalize expropriation. Instead, it represents a
conceptually distinct view of the role of property in society, and the role of the state
in intervening in property relations.
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Chapter 10
A Curious Doctrinal Marriage: the Social
Function of Property and the Right
to the City in Brazil
Colin Crawford
Abstract This chapter will explore a curious conceptual marriage in the recent
history of the notion of the social function of property as it has been received and
used in Brazil. In doing so, the chapter aims to highlight notable features of social
function doctrine as it has been understood and applied in Brazil. The chapter will
begin by briefly reviewing the reception and history of social function doctrine in
Brazil, exploring how the Brazilian reception of the social function concept displays
exactly the sort of necessary evolution in the property institution that Duguit argued
was necessary. Second, the chapter will explore the melding, in the Brazilian context,
of social function doctrine and the idea of the “right to the city.” In this portion, the
chapter will both describe the improbability of this pairing and suggest likely reasons
for its success. In describing the coupling of social function and right to the city
doctrines, the chapter will thus explore both the intellectual history of that relationship
and the legal architecture in which it is embedded today. Finally, the chapter will
conclude with an examination of some notable cases in which Brazilian courts have
applied the national legal formulations of social function theory and the right to
the city and offer reflections on the role of social function concept in Brazil today
(and focus on one case that is both typical in its causes of action and reasoning and
exceptional because it does not come froma part of the country noted for progressive
urban jurisprudence.) The chapter concludes by analyzing how, despite the oddity,
in intellectual terms, of the couple of social function doctrine and the right to the
city concept, the marriage presents a dynamic notion that is steadily expanding the
reach of the idea of property’s “social function” is South America’s largest and most
populous nation.
Keywords: Léon Duguit · Social function of property · Henri Lefebvre · Brazil ·

Right to the city · Statute of the City · Brazilian jurisprudence · Urban Law
Translation of Portuguese-language documents are those of the author.
C. Crawford (B)
Louis D. Brandeis School of Law, University of Louisville, 2301 South Third Street, Louisville
KY 40292, USA
e-mail: colin.crawford@louisville.edu

254 C. Crawford
10.1 Social Function in Brazil
The Brazilian constitution has included a commitment to the social function of prop-
erty since 1934 (Fernandes 2010, 56). There is some dispute whether the genealogy
of the Brazilian understanding of social function doctrine descends only from Duguit.
Alexandre Cunha argues that “Italian jurists Pietro Cogliolo and Enrico Cimbali, who
both exerted overwhelming influence over the so-called ‘Renovators’ of Brazilian
Private Law, are primarily responsible for Brazil’s version.” Cunha argues that this
distinction is of consequence because, “[u]nlike Duguit, Cogliolo and Cimbali con-
strued the concept of a social function as a justification for imposing only external
limits on the exercise of rights.” As a result, says Cunha, Brazilian courts have never
considered Duguit’s understanding of the social function of property as a source of
internal limitations” (Cunha 2011,1171). If true, this matters because it would be
that social function was not a controlling characteristic of the institution of property
but rather one of many tools that a court or a legislature could impose to regulate
property use, and then only after – as Duguit himself recognized in the Sixth Lecture
– paying an indemnity for the regulation. In other words, a conception of external
limits only is restrictive and does not allow for the potential transformative force of
social function doctrine envisioned by Duguit. An understanding of property’s social
function as introducing a new conception of the institution itself allows the doctrine
to serve to alleviate the harsher effects of an absolute conception of property, as in
classical liberal property theory (Foster & Bonilla 2011, 1008. The Sixth Lecture
suggests that this was exactly what Duguit intended. If indeed the Brazilian under-
standing differs, this would suggests that the notion would have less robust effect in
Brazil.
However, it is also important to recall that in Duguit’s conception, his view of
social function was not a matter of identifying, analysing and correcting a past
misconception. Duguit was no prescriptivist. Rather, more scientist than positivist,
Duguit’s method shows him describing a conceptual reformulation necessitated by
larger social and economic changes. His vocabulary, his language of transforma-
tion and evolution, reveals as much. The Buenos Aires lectures make very clear his
understanding of his task to articulate this transformation in the property institu-
tion itself, due to social and economic change. As he wrote: “the economic need to
which the legal institution of property has provided answers deeply transforms itself;
consequently, property as a legal institution must also transform itself.” The institu-
tion itself is thus the agent of its own transformation, in response to new empirical
realities.
The above clarifications matter because they allow us to understand how Brazil’s
changing conception of social function may in fact be understood as a case study of
the very dynamic Duguit presented himself as describing to his Argentine audience.
That is, over time, and arguably for the very reasons of social and economic change
Duguit both described and hinted at – the progress of science and the presence of
technology in our lives, the denser use of space this necessitated, and the effects of
industrialization – the concept of the social function in Brazil has gradually assumed
10 A Curious Doctrinal Marriage: the Social Function of Property … 255
an understanding more consistent with Duguit’s concept. This is a process, however,

bookended across a century by two versions of the Civil Code that played an important
role in shaping the success of social function doctrine in Brazil. On the one hand, the
1916 Civil Code in effect for most of the 20th century enshrined a narrow notion of
private property rights that fought against the application of social function theory,
advancing an inequitable process of urbanization. As Fernandes explains:
A further key factor in the creation and reproduction of this exclusionary process of urbani-
sation was the prevalence of an obsolete and prohibitive legal order overly concerned with
property ownership rights which, disregarding the principle of the social function of property
that had been set forth in all the Federal Constitutions since 1934, continued to affirm the
anachronistic paradigm of the 1916 Civil Code that reinforced the long-held tradition of
individual property rights. As a result, the scope for intervention by the public authorities in
the property sector through planning and urban management initiatives was severely con-
strained over many years. This was particularly the case at the municipal level (Fernandes
2010, 56).
On the other hand, the 2002 Civil Code changed matters significantly, as will be
seen in what follows. Yet despite these changes, as will also be seen, residual beliefs
in the primacy of private property rights continue to exert a sway over Brazilian
legislators and courts.
Nonetheless, social function doctrine consistent with Duguit’s conception gradu-
ally began to take a firmer hold in Brazil. This is nowhere better seen, for example,
than in Brazil’s 2002 Civil Code, which announced “a new concept of property,
based upon the constitutional principle that the function of property must be social,
[that] overcomes the interpretation according to which . . . property is an exclusive
function of the interests of individuals, owners, or possessors.” As Cunha himself
concludes, “[t]he Code internalizes the social function of property by imposing a
duty of solidarity upon the owner.” Thus, property’s “socializing” of itself, as Duguit
put it, became complete in the Brazilian case. As the 2002 Code itself provides:
“[t]he right of property must be exercised in accordance with its economic, social
and environmental ends, so that the flora, fauna and natural beauties are preserved,
as well as the ecological equilibrium and the historical and artistic patrimonies, and
so that air and water pollution are averted, in obedience of the rules established by
specific legislation.” Indeed, this is a “socializing” that Duguit could not have fully
imagined, the environmental consequences of the changes that drew his attention not
having fully manifested themselves when he wrote. The next section will describe an
important aspect of Brazilian law that relies fundamentally upon the social function
concept, namely in the urban context.
256 C. Crawford
10.2 Social Function and the Right to the City
10.2.1 Context in Which Duguit Wrote
León Duguit of course first articulated his famous principle in 1911. The year is, I
think important and I think it is worth focusing on it for a moment. The first two
decades of the 20th century were convulsive for Europe, culminating, of course,
in the brutality, bloodiness and social upheaval of the Great War. Unsurprisingly,
these years led to calls for rethinking the fundamental inequality characteristic of
the era, an inequality that, at its most oppressive, centered on property distribution
(Gilbert 1979, 19; Lefebvre 1972, 109-143). This was especially true in Russia,
where the declaration of the end of serfdom in 1861 both allowed former serfs
more time to organize and focus on the country’s profoundly inequitable property
distribution system and helped fuel migration to Russian cities. By the turn of the 20th
century, Moscow and St. Petersburg were among the world’s most crowded cities
for the minority of Russians who lived there. These factors were among those that
contributed to the first Russian Revolution, in 1905, when uprisings and subsequent
Czarist repression resulted in paralyzing worker strikes and, finally, czarist promises
for more representative government. These promises, however, were waylaid by
global events, including the outbreak of the Great War, which further impoverished
Russia and made an opening for the ideas of those like Vladimir Lenin, who outlined
a vision for, among other things, a more equitable form of land distribution. (Lenin
1968, 278). The conclusion of this tumult was a second revolution to bookend the
first, in 1917, and the creation of a Russian communist state. (Riasanovsky 1977,
525-538)
Apropos Duguit, these facts bear mention for at least two reasons. First, the
potential for a radical transformation of political systems and the societies they
supported, as they had evolved in Europe over centuries, was a real possibility when
Duguit was formulating his ideas; indeed, the Russian Revolution realized that threat.
(Riasanovsky 1977, 506). In other words, the growing threat of a socialist order in
Europe was a major political and social topic of the era, and not only in Russia
(Gilbert 1979,). This was the world of political and ideological debate in which
Duguit lived and thought. This chapter is not one of intellectual history. However,
for my purposes, it is sufficient to note that one could hardly escape confronting these
ideas in the early years of the 20th century, not least a legal theorist like Duguit.
Second, while the Russian revolutions of 1905 and 1917 were multi-themed, a
central theme of them was property maldistribution and how to correct it. In short,
therefore, it is fair to read Duguit’s notion of the social function of property as a
response to those events, to articulate a middle position that sought to alleviate some
of the harsher consequences of traditional notions of private property and still to
defend its basic principles that sought to enable people to express their desires through
the act of holding, improving and benefitting from property. Thus, I am suggesting
that it is no mere coincidence (nor is it casuistic to suggest) that Duguit, in his
very opening observations in the Sixth Lecture contrasts the increasing “socialising”
aspect as a necessary feature of the property concept’s development, as opposed to

the “collectivist” understanding of the term, as when he wrote:
property is a legal institution that formed itself to answer an economic need, . . . and that it
evolves necessarily with economic needs themselves. Yet, in our modern societies the eco-
nomic need to which the legal institution of property has provided answers deeply transforms
itself; consequently, property as a legal institution must also transform itself. The evolution
here is happening in a socialist sense. . . . Therefore, property is socialising itself, if I can say
so. This does not mean that it becomes collective in the sense of collectivist literature; but
it means two things: firstly that individual property ceases to be a right of an individual to
become a social function and secondly that the cases of allocation of wealth to communities,
which must be legally protected, increase (Duguit, 1919, p. 51).
What I take to be important in this passage is the contrast of the socializing aspect
and its collectivist version, an acknowledgement, however obliquely, of the debates
shaking Europe at the time. Indeed, while to be sure Duguit was no Marxist (much
less a Leninist!), the echoes of Marx in a phrase like this, also from the Sixth Lecture,
are unmistakable: “today, we have the very clear consciousness that the individual
is not an end, but a means, that the individual is only a cog in the broad machine
that is the social body, that for each of us the only reason to be in the world because
of the task that he fulfils in the social endeavor. Thus, the individualistic system is
in obvious contradiction with this state of modern consciousness.”1 Yet Duguit is
intent to insist that he is not altering the central characteristic of private property, an
insistence that again reflects the mood of the time: “I really care to avoid here any
misunderstanding. I do not say, I never said, I have never written that the economic
situation which is individual property disappears, should disappear. I only say that
the legal notion upon which its social protection rests is changing.” Indeed, Duguit’s
conservatism, his desire to resist ideas threatening the fundamentals of European
society at the time, is at moments clearly expressed: “It is a crime to preach the
struggle between classes, and I think we are walking not towards the annihilation
of one class by another, but to the contrary towards a regime of coordination and a
process of creating a hierarchy of classes.”
This is not to suggest that the Sixth Lecture was a tract against collectivist notions
of property. It is merely to identify the ways in which Duguit’s ideas were responsive
to the larger intellectual environment of his time. Another respect in which this
was true, of course, was his response to industrialization and one of its attendant
phenomena, namely what we today call urbanization, as people began to live more
closely together than before, necessitating conflicts like Duguit’s famous discussion
of the installation of telephone, telegraph cable and electrical lines, which show, he
11 Compare for example, Marx and Engels themselves in the Communist Manifesto, expressing
a similar concern: “We Communists have been reproached with the desire of abolishing the right
of personally acquiring property as the fruit of a man’s own labor, which property is alleged to
be the groundwork of all personal freedom, activity and independence. Hard-won, self-acquired,
self-earned property! Do you mean the property of the petty artisan and the small peasant, a form
of property that preceded the bourgeois form? There is no need to abolish that; the development of
industry has to a great extent already destroyed it, and is destroying it daily” (Marx & Engels 1968,
47).
258 C. Crawford
says, how “the progress of science strengthens every day the links of social solidarity
and gives birth to new legal institutions.”
That one of the new legal institutions would be a social function notion in part
necessitated by “the progress of science” and its consequence in part may help explain
the curious marriage, in the Brazilian context, between Duguit’s social function
notion and the right to the city concept.
10.2.2 The Right to the City
Another Frenchman, Henri Lefebvre, was the author of the “right to the city” concept.
Despite their shared nationality, the two thinkers – working two generations apart –
could hardly have been more different in intellectual style. Where Duguit is a model
of a careful, logical, deductive legal thinker, Lefebvre was in many ways his opposite:
a rich fountain of ideas, queries and proposals and, also, a highly didactic, openly
ideological thinker. A Marxist by belief and sociologist and philosopher by training,
Lefebvre’s writing spanned across a wide range of subjects; it is effusive, explosive.
Lefebvre’s major work was produced in the 1960s and 1970s, decades of intense
social change and decades marked by the beginnings of the intense urbanization that
has become a global hallmark of the early 21st century (UNFPA 2015, 32-33). Like
Duguit, but less positively, Lefebvre could be said to concerned with the “progress of
science”, or, more specifically, with the negative manifestations of that progress. In his
view, the right to the city was a needed response to the fundamental inequality in the
use of space, in addition to inequities of service provision that characterized modern
urban life. To this end, Lefebvre articulated a holistic vision that would establish the
rights of all citizens – irrespective of their ownership or not of urban property – to
benefit equally from the advantages of city life. (Lefebvre 1996, pp. 100-103)
Where Duguit took “as a fact the holding of capitalist wealth by a certain number
of individuals”, for Lefebvre, writing two generations later, this was the root of the
problem that left so many in modern cities in miserable circumstances. As he wrote:
“The working class . . . is a victim of a segregation, of a class strategy . . . a new misery
spreads, which mainly affects the proletariat. Rejected from the centres towards the
peripheries, dispossessed of the city, expropriated thus from the best outcomes of its
activity . . ..” The answer to this dismal situation, wrote Lefebvre, was a new “social
practice: right to work, to training and education, to health, housing, leisure, to life.
Among these rights in the making features the right to the city (not to the ancient
city, but to urban life, to renewed centrality, to places of encounter and exchange, to
life rhythms and time uses, enabling the full and complete usage of these moments
and places, etc.)” (Lefebvre 1996, p. 150).
But, as suggested in the prior section, if, across the generations, the anti-collectivist
Duguit and the celebrated Marxist Lefebvre’s ideas shared anything in common, it
was the recognition that, as Duguit wrote in the Sixth Lecture, “the structure of
modern societies is much more complex” than it had been in generations past, a fact
that demanded new solutions.
Thus, the curious marriage between these two thinkers in the Brazilian context is
not entirely as strange as it may seem at first glance.
10.2.3 The Brazilian integration of Social Function Doctrine

and the Right to the City
As indicated above, the social function concept has been recognized in the Brazilian
constitution since 1934 although, as also noted, other elements of the legal archi-
tecture sometimes prevented it from being applied. That situation began to change
radically, however, following the end of military dictatorship in 1984 and the prepa-
ration of a new constitution and an ensuing round of complementary legal reforms.
The most recent version of the constitution, the so-called “People’s Constitution”,
drafted in the wake of the end of the last military dictatorship and enacted in 1988,
set the stage for a more robust embrace of social function doctrine.
The Constitution’s Article 5 provides that “the right to property is guaranteed”
(Art. 5, Sex. XXII) and, immediately following that guarantee, commits that “prop-
erty must comply with its social function.” (Art 5, Sex. XXIII). On its face, this last
provision might seem to resolve the matter, to affirm an understanding of the prop-
erty institution that would satisfy Duguit. However, to complicate that impression
slightly, the following two subsections provide for the process of indemnification in
cases of, respectively, property appropriation for “necessity or public utility, or for
social interest”, or in cases where it is necessary to seize private property for rea-
son of “immanent public danger.” (Art. 5, Secs. XXIV and XXV). These provisions
deserve notice because, as the indemnity references make clear, they suggest a resid-
ual commitment to the view, identified by Cunha and others, that in Brazil a view
of social function as an external imposition only, a view that, if true, would severely
limit the socially transformative potential of property’s social function, which Duguit
believed inevitable. I other words, the residual force of a strong belief in private prop-
erty rights is rarely absent entirely from the Brazilian legal context, even while social
function theory continues demonstrably to gain force in understanding and applica-
tion. For the moment, therefore, I will turn to an area in which a Duguitian version
of property’s social function appears very much in evidence in Brazil, namely in the
law that enshrines the notion of the right to the city.
10.2.4 The City Statute
Brazil is one of the most urbanized countries in the world; nearly 80% of its population
lives in cities (UNDP). It is perhaps no surprise then that its laws and regulations evi-
dence an effort to confront the consequences of urbanization. The 1988 Constitution,
for example, contains a number of urban guarantees, including the federal govern-
260 C. Crawford
ment’s obligation to “provide guidelines for urban development, including housing,

basic sanitation and urban transportation” (Art. 21, XX) and a specific instruction for
the federal and state governments simultaneously to issue “urban law” (Art. 24, I).
In language that echoes Duguit, the 1988 Constitution authorizes the states specif-
ically to “establish metropolitan regions, urban agglomerations and micro-regions,
constituted by groupings of urban boundaries, so as to integrate the organization,
planning and the execution of public functions of common interest.” (Art. 25, §
3º) Respecting the tripartite structure of Brazilian government that divides authority
between federal, state and municipal powers, cities themselves have the obligation to
“promote, where appropriate, adequate territorial ordering, via planning and control
of use, division and occupation of urban soil.” (Art. 30, VIII). There are many others.
But for purposes of this distinction, surely the key feature of the Constitution is the
chapter devoted entirely “of the urban policy”. (Tit. VII, Ch. II).
Chapter II of the Constitution’s Title VII articulates the connection between social
function and the right to the city. It begins with the provision that “urban development
policy, executed by the municipal Public Power . . . has as its objective to order the
full development of the social functions of the city and to guarantee the well-being
of its inhabitants.” The remainder of the Article contains three important provisions.
First, it indicates that the city’s master plan of shall be “the basic policy instru-
ment of urban development and expansion.” Furthermore, the chapter affirms that
urban property “complies with its social function when it attends to the fundamental
exigencies of city ordering expressed in the master plan.” This last provision is of
special notice here since it indicates that the master plan provides the guidelines for
social function compliance. Yet immediately following this provision, the Constitu-
tion reveals again the constant tension in Brazilian social function doctrine between
externally imposed and internally imposed limits, when it provides that: “expropri-
ations of urban property shall be done with [payment of] prior and fair indemnity in
cash.” Cash payment is an externally imposed obligation, one that respects private
property and does not involve reorienting the use to comply with social function.
Second, however, the chapter then swings back firmly onto the side of social
function doctrine, where it addresses the ability of municipal authorities to compel
“the owner of unbuilt, underutilized or non-utilized urban land” to make the owner’s
property social useful, via an order to build upon it, or to pay taxes or to suffer expro-
priation. Third, the chapter outlines the terms under which those without housing
may occupy private property adversely.
Against this background, it is possible to understand the necessity for a law to
help clarify the content of these constitutional urban guarantees. Despite the promise
to guarantee urban reform in Brazil in support of a more inclusive society, the 1988
Constitution’s decentralizing tendencies left open many questions. Edésio Fernan-
des observes as follows: “the 1988 Constitution failed to deal adequately with the
management of metropolitan regions: responsibility for formulating a legal frame-
work for administration of the large metropolitan areas was transferred to the state
governments.” (Fernandes 2010, 59).The response to this failure came more than a
decade later, in Law 10.257 of 10 July 2001, the “City Statute.”
By any measure, the City Statute itself represents a revolutionary approach to

urban legislation. Its ambition, an ambition fully consistent with the aims of social
function theory, appears in its opening paragraph: “this law, called the City Statute,
establishes norms of public order and social interest that regulate the use of urban
property in the service of the collective good, of security and the well-being of the
citizens, as well as environmental equilibrium.” This wide-ranging commitment is
then followed by words that make clear that this is intended strongly to affirm the
very ideas that Duguit and others affirmed: “[t]he urban policy has as its objective
to order the full development of the social functions of the city and urban property .
. ..” The City Statute then goes on to detail the manifold ways in which this will be
accomplished, including the “guarantee of sustainable cities.” Sustainable cities are
understood to require the provision of a wide range of services, both abstract – the
provision begins with the promise of “the right to urban land” and highly specific,
including housing, environmental sanitation, urban infrastructure, transport and pub-
lic services, employment and recreation and, in a nod at the terms of the 1992 Rio
Declaration on the Environment and Development and many international declara-
tions since, all of this must be provided for “present and future generations.” The
City Statute also places a heavy emphasis on accomplishing these goals with “demo-
cratic administration by means of participation by the population and representative
associations of the various segments of the community in the formulation, execution
and implementation of plans, programs and projects of urban development.” Even
“private enterprise” should involve itself in the “urbanization process” in “the service
of social interest.” This feature of the City Statute, to promote robust civil society
participation to define property use decisions, is especially noteworthy. It folds into a
law that very much reflects prominent aspects of social function doctrine and makes
express a notion to remedy Lefebvre’s concerns about urban citizens in a state that
is “separated, isolated, disintegrated.” (Lefebvre 1996, p. 177). As Lefebvre wrote:
“[t]he right to the city manifests itself as a superior form of rights: right to freedom,
to individualization in socialization, to habitat and to inhabit. The right to . . . par-
ticipation and appropriation (clearly distinct from the right to property), are implied
in the right to the city. (Lefebvre 1996, p. 153) Thus, a law that involves citizens in
association with one another to articulate the uses to which property should be put
would surely have agreed with Lefebvre. Conversely, it was not a concern central
to Duguit’s social function notion.
In terms of the revolution in social theory that the City Statute promised to imple-
ment, the next provision is of special interest. Land use planning and controls are
to be implemented with the aim to avoid a series of eight considerations. Notable
among them for social function analysis are that the planning must avoid “inadequate
use of urban property”, or “land subdivision, building or the excessive or inadequate
use with respect to urban infrastructure”, “speculative retention of urban land, that
results in its underutilization or non-utilization”, “the deterioration of urban areas” or
“pollution and environmental degradation.” To this point, one imagines León Duguit
smiling from his final resting place because the considerations acknowledge the com-
plexity of modern cities. And this is not all. Further on, the City Statute expresses a
commitment to “the just distribution of the benefits and resulting responsibility of the
262 C. Crawford
urbanization process.” This shall be accomplished, per the City Statute, in numerous
ways, including by taxes and charges and “recuperation of investments” by public
authorities. One could scarcely find a section of a law more consistent with the ideals
of social function theory.
The City Statute then goes on to focus on the role of planning authorities. As will
be seen in the discussion below, this may be seen in part as a partial negation of the
popular promise of the law. Chapters II and III detail the legal instruments to be used
to implement this broad vision of urban rights and obligations. To a great extent,
the chapters locate that authority at the municipal level, consistent with the practice
of leaving regulation and administration of these matters to local authorities (Brazil
2001). On its face, this might seem to promote a practice that would assure the triumph
of social function theory in application, with vigorous citizen engagement in land use
decisions. However, throughout these chapters the legal tool that stands out as first
among equals is the General Plan. As will be seen below in the section analyzing some
recent Brazilian cases, this practice tends to favor a highly technocratic approach that
in practice does not reveal a strong commitment to citizen engagement and tends to
promote a highly exclusionary decision making practice, one that tends to favor high-
revenue producing real estate development rather than broadly beneficial social uses
of property.
The fourth chapter of the City Statute, however, holds more promise for the possi-
bility of an engaged citizenry involved in property use decisions that would promote
realization of shared decisions about property’s social function – again the melding
of Duguit’s theory and Lefebvre’s utopian vision. Chapter IV treats “of the demo-
cratic administration of the city.” Again, at first glance, its grand, utopian language is
inspiring, seeking “to guarantee the democratic administration of the city.” It seeks
to achieve this by various instruments, including but not limited to “collegial bod-
ies of urban policy”, “debates, public audiences and consultations”, “conferences of
subjects of urban interest” – at all levels of government, and “popular initiative of
legal projects, plans, programs and projects of urban development.” The chapter con-
cludes, somewhat grandly, declaring that “[t]he development entities in metropolitan
regions and urban agglomerations shall include obligatory and significant participa-
tion by the population and by representative associations of various segments of the
community, in such a way to guarantee the direct control of its activities and the full
exercise of citizenship.” Superficially, this notion gives full voice to a utopian view
of citizen engagement that the Marxist Lefebvre would likely have favoured. It is
also one that would permit a deep social discussion of how best to realize property’s
social function. What the section lacks, however, is a mechanism for guaranteeing
the realization of property’s social function. As the Brazilian cases demonstrate,
that role is largely left to legislators and regulators, with results that do not serve a
vision of property’s social function that either Duguit or Lefebvre would likely have
endorsed. Nonetheless, it is a vision of property’s social function that is unquestion-
ably changing the way property ownership is understood in Brazil. I turn now to that
topic.
10.3 Brazilian Cases
In preparation for this article, I researched cases involving Brazil’s application of the
social function of property and in particular those that also made reference to the City
Statute for a 15-year period, from 2002 through 2017. This search yielded nearly 40
cases. Researching case law in Brazil, a civil law country in which individual courts
have a high degree of autonomy and where judicial decisions, when written, are not
reported to or collected by a central electronic database like Westlaw or Lexis, is no
easy matter. Nonetheless, I am confident that the cases reviewed represent a reliable
snapshot of the view that the Brazilian judiciary is beginning to take of these issues.
Before proceeding, however, it is important to note that Brazilian cases involving
the social function of property show a clear divide between cases dealing with rural
property and those dealing with urban property. The reasons for this are doubtlessly
complex, but to generalize the rural cases on the whole tend to favor landlords,
whether resident or not, while the urban cases increasing demonstrate a tendency to
favor a broader range of constituencies affected by the use of urban land. Since this
paper focuses on the integration of social function doctrine and Brazil’s city statute,
attention here will concentrate on the urban cases.
Taken as a whole, the cases suggest a growing sophistication in the attitudes
or Brazilian courts when considering social function-related claims. Above all, they
demonstrate that the notion of property’s social function has made its way firmly into
the Brazilian judicial imagination.2 A quick review demonstrates that the majority of
the cases involving social function doctrine that reach Brazilian high courts involve
challenged violations of master plans – and a claim that they had been prepared
without the requisite degree of public participation. Importantly, too, while the cases
tend to originate in the wealthier southern and south-eastern parts of Brazil, there all
also cases from the country’s less prosperous areas, including the northeast and the
western interior.
For purposes of this analysis, the remainder of this section will focus on one case as
typical of the cases studied, from the northeastern state of Bahia. This Bahian example
is useful not only because it is typical of cases that reject a Master Plan for failure
to include robust public participation in keeping with the Brazilian commitment to
social function and the terms of the city statute. It is also of significance because
the case comes not from one of the more prosperous, more economically developed
states of the south, but from a northeastern state traditionally viewed as one controlled
by the “colonels” who have dominated Brazilian political and social history to the
detriment of most Brazilians. This is to say that progress on matters like social
function doctrine and the right to the city can be measured in a state like Bahia,
which has traditionally been under the firm control of moneyed elites, an openness
to these ideas is possible anywhere in the country.
The case before the highest Bahian state court was a claim of unconstitutional
action regarding the Master Plan – again, a standard move in this context. In it,
the Court examined the relationship between the urban rights and obligations at
2A chart detailing these cases appears as an appendix to: Crawford C (2017)

264 C. Crawford
the federal, state and municipal levels. In addition, the decision explained that the
1988 Federal Constitution that must be regarded as one of a broader set of legal
instruments for municipal urban planning that need be understood together, such
that, for example, the State Constitution refers to and thus incorporates by reference
the “Federal Constitution, this [Bahian] Constitution and the municipal Organic
Law.” The direction of this set of instruments, the decision goes on to set forth, is to
require the creation of mechanisms for popular participation, including “mechanisms
for exercising popular sovereignty” and “mechanisms for participation in municipal
administration and control of their actions.” The decision further noted that “[t] he
point is also in perfect harmony with the provisions of the City Statute,” which
requires municipalities to engage in, inter alia:
the promotion of public hearings and debates with participation of the population and repre-
sentative associations of the various segments of the community; advertising the documents
and information produced; (…) [and permitting] access by any interested party to the docu-
ments and information produced (Bahian Case 2014, 5).
After then citing various constitutional (federal and state) constitutions and rele-
vant laws, the Bahian Court then arrived at this observation:
the cited [legal] provisions and the constitutional principles of participatory democracy and
democratic participation in urban policies, have invariably been understood to establish broad
and effective popular participation in the process of drafting and approving laws that institute
or alter the master plan of municipalities. For this reason, state courts have unanimously
adopted the position that a municipal regulation that changes the master plan without the
effective participation of the community in the legislative process is unconstitutional (Bahian
Case 2014, 35).
The Bahia decision then identified fifteen decisions supporting these principles
that had been issued since 1993, and summed up the conclusion on public participa-
tion with these strong words:
and thus the task of planning the city becomes a public function that must be shared by the
State and by society, who are responsible for the observance of human rights and for the
sustainability of urban processes (Bahian Case 2014, 38).
Moreover, the Court stated the following understanding:

For no other reason, democratic management is the method proposed by the law to conduct
urban policy. From this postulate we should not turn away, since the Master Plan takes
the shape of a fundamental instrument for the realization of the Right to the City. Without
hesitation, constructed in a democratic and participative way, it will bring to reality the
yearnings and desires of the different regions and classes of the city (Bahian Case 2014, 38).
For these reasons, the Bahian Court stated that the Master Plan could not be
changed as it had been, without active public participation, as required not only in
the 1988 Federal Constitution, but also in the City Statute: “it is the Master Plan that
will establish the coefficients of basic and maximum utilization of each zone”. In addi-
tion, the Court expressed its concern about legislative oversights, noting that “news
and demonstrations presented in various mass media concern the absolute absence of
popular participation in the legislative process”. (Bahian Case 2014, 44). The Court
then asserted that the Salvador municipal authorities ignored the Public Ministry’s
concerns relating to the lack of technical studies and public participation, and further
observed that the acts of the State of Bahia to correct the situation represented a “so-
lution [that] is frighteningly inadequate.” Therefore, the Court emphasized: “there is
a need for the Legislature to provide, at a time after the issue of the norm, [efforts that
will compensate for] the lack of technical studies and required popular participation
required.” As the Court concluded firmly, it would be “logically impossible” to do
so in any other way.” (emphasis in original). The Court also suggested that the City
Council tried to make drastic changes to the city’s zoning for the 2014 World Cup
without sufficient evidence of the need for such changes. In addition, it criticized
the municipality for forcing changes that would allow, for example, developers to
construct seaside hotels exceeding by up to as much as 50% of the permissible zon-
ing for “a specific region, in particular considering that the defined areas . . . are
situated in important ventilation corridors, besides affecting the City’s seaside land-
scape.” These observations would likely have satisfied both Duguit and Lefebvre in
that they demonstrate a clear understanding of social and environmental concerns
necessitated by dense modern urban living.
10.4 Conclusion
In sum, the Bahian case, and others like it studied in preparation of this chapter,
provide grounds both for optimism and for concern. Several lessons can be estab-
lished on the basis of this and related cases. First, the Bahian and similar cases
clearly provide that Brazilian urban law requirements stemming from the constitu-
tional provision regarding social function and the City Statute and other, related legal
instruments must be respected. Second, and as a result, this and other cases establish
that the social obligation of a private property owner must be satisfied. Third, how-
ever, it must be noted that the case of Bahia won by a difference of a single vote,
suggesting the precarity of at least one Court’s commitment to this position. What to
make of this sometime ambivalence? On the one hand, I have demonstrated that the
Brazilian judiciary is increasingly aware of the importance of the concepts discussed
here, and often embraces them powerfully. On the other hand, such close margins
in a case like the Bahian one suggest that much still needs to be done to ensure
that the concepts of social function and the right to the city receive the full judicial
and political embrace they deserve. Duguit’s notion is alive and well in Brazil, as
are aspects of Lefebvre’s conceptual framework, but much still needs to be done to
deliver on these aspirations.
266 C. Crawford
References
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Law Review 80(3):1003–1015
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40.2012.8.05.0000, de 12 de fevereiro de 2014 [Judicial Power of the State of Bahia, Case n.
0303489-40.2012.8.05.0000, February 12, 2014](“Bahian Case”)
Brazil 2001. República Federativa do Brasil, Lei no 10.257, de 10 de julho de 2001 [Law 10,257
of July 10, 201]](“City Statute”)
Crawford C (2017) A função social da propriedade e o direito À
cidade: teoria e prática atual. IPEA texto para discussão 2282.
http://www.ipea.gov.br/portal/index.php?option=com_content&view=article&id=29721.
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80(3):1171–1181
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Ltd., London
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The City Statute of Brazil: A commentary. Cities Alliance and Ministry of Cities, São Paulo, p
55
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Lefebvre H (1972) trans: Bononno R (2016) Marxist Thought and the City. University of Minnesota
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[trans of: La production de l’espace]
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1919). In: Conner JE (ed) Lenin on Politics and Revolution, Selected Writings. Pegasus, New
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Chapter 11
Léon Duguit and the Social Function
of Property in Argentina
M. C. Mirow
Abstract Despite its early introduction to Argentina in 1911, the doctrine of the
social function of property was not quickly appropriated into the Argentine legal
system. Only after a period of more than thirty-five years did this concept of prop-
erty find expression in this country through the Constitution of 1949, the Peronist
constitution drafted under the guidance of Arturo Enrique Sampay. Duguit’s writings
formed part of a broader understanding of the social function of property that was
informed by various scholars and sources, and particularly by works on Christian
humanism and the social doctrine of the Roman Catholic church. Although men-
tioned in the debates of the Argentine Constitution of 1949, Duguit was only one of
a variety of sources employed by advocates of the doctrine, and his direct influence
in the area was significantly less than one might expect considering the historical
link between his lectures in Buenos Aires and the creation of the doctrine.
Keywords Léon Duguit · Arturo Enrique Sampay · Social function · Social

obligation · Property · Juan Perón · Argentina · Constitution of 1949
French jurist and law professor Léon Duguit enunciated the definitive form of the
doctrine of the social function of property in Buenos Aires in 1911. Duguit’s lectures
in Argentina marked an important stage in concretizing this new paradigm of prop-
erty into legal theory and positive law (Mirow 2016a). Despite this early enunciation
of the concept of the social function of property in Argentina’s academic commu-
nity, the incorporation of this idea into the law of the country was circuitous and
transitory. Apart from Duguit’s lectures in Buenos Aires, the only other significant
Argentine work adopting and expounding the social function of property was the
Peronist Constitution of 1949. This chapter explores the way Duguit’s thought fit
into the construction of an autochthonous Argentine doctrine of the social function
of property from the doctrine’s first iteration in 1911 until the repeal of the Peronist
constitution in 1956. Scholarship on the social function in Argentina has been under-
standably limited because until recently it has been difficult to extricate the historical
M. C. Mirow (B)
Florida International University College of Law, Rafael Díaz-Balart Hall, 11200 S.W. 8th Street,
Miami, FL 33199, USA
e-mail: mirowm@fiu.edu

268 M. C. Mirow
study of property as a social function from this constitution and its political move-
ment and moment (Ramella 2007, 299). The seeds of the social function property
were planted early in Argentina, but their yield was somewhat late for the region and
not as lasting as in other countries.
This chapter begins with a brief discussion of the most important Argentine pre-
cursors to Duguit’s lectures and his theory of property. This first part establishes the
existence and use of the classical liberal paradigm of an absolute right to property in
the later nineteenth and early twentieth centuries in Argentina. This liberal construc-
tion of property was widespread throughout Europe and Latin America; it was the
very notion against which Duguit reacted. The next part of this chapter analyses the
manifestation of the social function of property adopted in the Argentine Constitution
of 1949. The works of Arturo Enrique Sampay (1911–1987), other deputies to the
constituent convention, and scholars are examined to understand their appropriation
of this doctrine of property in light of Duguit’s work. The final part assesses the
work of Duguit in the Argentine context. It notes that Duguit’s writings formed part
of a broader understanding of the social function of property that was informed by
various scholars and sources, and particularly by works on Christian humanism and
the social doctrine of the Roman Catholic church as enunciated in papal encycli-
cals. Because this study focuses on national trends and materials, significant work
remains to be done on the level of provincial constitutions and other sources. These
concluding comments also observe that the path of Argentina to the social function
of property in 1949 is an example of the diversity of legal development in Latin
America. Although variations of the social function of property were found through-
out the region in the twentieth century, the history of its adoption is unique in each
country’s legal and political moment.
11.1 Precursors
Before assessing the place of the social function of property in the Constitution of
1949, a few observations on the previous constitution, the Argentine Constitution of
1853/1860, are necessary.1 The Constitution of 1853/1860 was crafted from the work
of one of Argentina’s great jurists, Juan Bautista Alberdi (Mirow 2015, 159–163;
Mirow 2016b, 368–369). In Bases y puntos de partida para la organización política
de la República Argentina, the most important book on comparative Latin American
constitutions of its time, Alberdi advocated a new Argentine constitution that would
promote economic growth, foreign investment, and increased population through
immigration. Alberdi criticized both the Spanish colonial law (derecho indiano) and
the constitutions of early Latin American independent republics for neglecting these
essential aspects of political and social progress (Mirow 2015, 160–161). Alberdi
1 The Constitution bears two years because it was first adopted by the Argentine Confederation
excluding Buenos Aires. When Buenos Aires adopted the constitution, it became the constitution
of the entire Argentine republic.
11 Léon Duguit and the Social Function of Property in Argentina 269
and the resulting constitution he championed adopted classical liberal principles

and subjective rights, including the right to property, a non-interventionist state,
and foreign investment. His stance on property was not surprising; an unlimited
and absolute right to property was by far the predominant conception of property
available to any drafter of the period (Levaggi 2007, 123–127, 130).
Adopting this classical liberal concept of property, the Constitution of 1853/1860,
Article 17 states:
Property is inviolable, and no one living in the Confederation may be deprived of it, unless
by virtue of a judgment based on law. Expropriation for public use should be determined by
law and prior indemnification.
Thus, property had to be inviolable, and the owner of property had to have the
fullest range of rights to use and to dispose of it (Koenig 2015, 103–104). Here,
Argentine constitutional law clearly echoed the French Civil Code of 1804 (the
Code Napoléon) which stated in Article 544:
Property is the right to enjoy and to dispose of things in the most absolute manner, provided
that one does not undertake a usage prohibited by law (Mirow translation).
Similarly, a few decades later, the Argentine Civil Code of 1871, in Article 2513,
was consistent in its enunciation of an absolute unfettered right to property:
Inherent in property is the right to possess the thing, to dispose or to benefit from it, to use
it, or to enjoy it according to the will of the owner. He may exploit it, degrade it, or destroy
it (Pasquale 2014, 102, Mirow translation).
It was precisely this Napoleonic formulation of property, as expressed in the Code

Napoléon, the Argentine Civil Code, and Argentina’s constitution, that prompted
Duguit’s famous response in his lectures in Buenos Aires. Working against the back-
drop of the rise of French and more generally European sociology and sociological
approaches to law, Duguit explained the social function of property through a course
of lectures spanning two months in 1911 in Buenos Aires, Argentina. The lectures
addressed how civil law had changed since the French Civil Code. He addressed
an admiring academic audience that was imbued with European culture, ideas, and
sources. Duguit’s polite flattery that Argentina and France were now equally civilized
must have warmed his audience. Duguit subsequently published these lectures as Les
transformations général du droit depuis le Code Napoléon, the work that most fully
set out his theory of the social function of property (Mirow 2010, 198–199, 207).
In bold contrast to the accepted characterizations of property established in works
of classical liberalism, civil codes, and constitutions, Duguit objected, “But property
is not a right; it is a social function” (Duguit 1920, 21). With this assertion, he
launched into uncharted waters and carefully navigated between established notions
of an absolute right to property and socialist theories that sought to abolish all forms
of private ownership. This statement reflected theoretical and methodological trends
of the time towards the “social”.
His sixth and final lecture of the series was the most unsettling and enduring. There
he explained that “I have developed the idea that capitalist property, and particularly
270 M. C. Mirow
real property, is increasingly less of a subjective individual right and more of a social
function” and he repeated and rephrased the idea this way “Property is no longer
the subjective right of the owner; it is the social function of the possessor of wealth”
(Duguit 1920, iv, v). This lecture and its subsequent publication became the seminal
source for the doctrine of the social function of property (Mirow 2010, 199–200).
Duguit’s theory purported to be descriptive rather than normative. He noted that
he was following the most modern methods of empirical and sociological investi-
gation. These approaches led Duguit to reject a deductive science of autonomous
law, and thus to join a small school of French anti-formalists. This positivist and
realist method was informed by the works of Émile Durkheim, Auguste Comte,
and Charles Gide. The writings of lesser-known contemporary French theorists of
property also served in Duguit’s construction of the social function of property. Ray-
mond Saleilles, a friend and colleague of Duguit’s, wrote that rights, even rights in
property, were not absolute. Furthermore, his work bridged sociological approaches
to law and the nascent development of Catholic social thought of the period. The
recent works of Adolphe Landry, Maurice Hauriou, Joseph Charmont, and, above
all, Henri Hayem served as the foundation for Duguit’s social function of prop-
erty (Mirow 2010, 200–202, 213–220, 225). In fact, the structure and arguments of
Duguit’s lecture in 1911 establishing the social function of property follow Hayem’s
doctoral dissertation at the University of Dijon in 1910 (Hayem 1910; Mirow 2010,
216–219).
Duguit introduced the social function of property to Argentina in 1911 but it must
have entered into a landscape of concepts and ideas about property extant in the
country before then. With this in mind, Abelardo Levaggi has explored the extant
academic literature for precursors to the social function of property in Argentina.
Only two works specifically adopted socialist formulations of property, a formu-
lation that was, of course, much further to the left of Duguit’s social function of
property. Luis A. Peyret’s doctoral dissertation at the University of Buenos Aires
in 1884 advocated the abolition of private ownership in land. In 1911, the same
year Duguit delivered his lectures, another visiting Frenchman, socialist leader Jean
Jaurès argued for placing limits on private property in a lecture on civilization and
socialism. Shortly after Duguit’s lectures, Enrique del Valle Iberlucea propounded
a fully socialist conception of property in 1915 in his article “Socialism and the
Evolution of Property” (Levaggi 2007, 127–129).
In contrast, the works affirming or tacitly accepting a classical liberal absolute right
to property set the tone during the period. This was the case, even though deputies
at the constituent convention and scholars expounding on property immediately pre-
ceding the Constitution of 1949 attempted to justify the social function of property
through historical antecedents in Argentina. In the 1910s, socialist ideas of property
were relegated to few and academic works outside the main stream of law students,
professors, and jurists (Levaggi 2007, 129–131). In this atmosphere, it is not surpris-
ing that Duguit’s complex formulation of the social function of property was unable
to make its way into the legal matrix of Argentina when it was expounded in 1911.
Although Duguit’s theory of property was delivered in Argentina and adopted else-
where in Latin America shortly after its presentation, his theory remained dormant
in Argentina for decades (Mirow 2011).
11.2 The Argentine Constitution of 1949
After consolidating power in 1945 and 1946, the Peronist government sought to
reshape the national economy and to jettison the classical liberalism of the Con-
stitution of 1853/1860 (Koenig 2015, 85). In a new democratic structure, the state
and property would serve the community and human dignity (Koenig 2015, 89). By
this time, there were many national models to follow, and many incorporated the
social function of property. Constitutions from Weimar Germany (1919), Colombia
(1945), Guatemala (1946), Ecuador (1946), Peru (1947), Bolivia (1947), and Italy
(1947), amongst others, offered language explicitly adopting a social function of
property or nationalized property. These texts were compiled by José Figuerola and
were available to the constituent convention for its use in drafting the constitution
(Ramella 2007, 318–320). Although a clear example of the direct appropriation of
Duguit’s social function of property may be found in the Chilean Constitution of
1925, this source was inexplicably referred to only infrequently by Argentine schol-
ars when considering the same formulation for Argentina in 1949 (Mirow 2011).
Political enmity across the Andes may have accounted for avoiding the recent work
of a neighbour, particularly when such changes were associated with economic and
social progress.
In addition to the powerful theoretical exposition of the social function of property
by Duguit in Argentina, contemporary drafters and scholars found glimmers of the
application of the social function during the pre-Peronist period, but these were weak
and short-lived. For example, Argentine codifier Vélez Sarsfield, commenting on an
article on property in his Civil Code stated that the general or collective interest could
sometimes be superior to the individual interest. There were also some decisions from
the 1920s to the 1940s by the Argentine Supreme Court in which the idea of the social
function of property was employed to remedy specific injustices (Ramella 2007, 310,
314, 333, 338–341). In 1922, the Argentine Supreme Court of Justice approved a
law that permitted Congress to regulate urban leases, a clear step away from liberal
principles of property (Diario, vol. 1, 323; Botana and Gallo 2013, xxiv). And in the
1940s, there were several legislative proposals and acts for agrarian and land reform
(Ramella 2007, 342–346).
Additionally, proponents of the social function of property unsuccessfully urged
this characterization of property during drafting sessions for a new civil code from
1926 until 1936. The draft code ultimately rejected the formulation; it was never
enacted, and the existing code continued to enunciate the classical liberal paradigm
of property (Parise 2017, 233–235). These small and detached instances of the social
function of property in Argentina between Duguit’s lectures and the Constitution of
1949 provided little to pave the way for the language that was to be incorporated into
the Constitution. These scattered instances of changes in the nature of property in
272 M. C. Mirow
Argentina must be understood in light of Levaggi’s assessment that Argentina had

few intellectual or legal precursors to the social function of property.
The Constitution of 1949 was a product of Juan Perón’s election as president in
1946. Reforming society and promoting industrialization, Perón was supported by
urban workers and their unions. Perón sought policies to favor all aspects of labor, to
effect “social justice”, and to aid the poor. He hoped to reassert national sovereignty
against foreign encroachments into the country’s political and economic life with
particular attention paid to sectors controlled by foreign firms such as railroads,
power plants, and other public services (Rock 1987, 214, 260–263). Peronism went
deeper than fiscal policy and workers’ benefits. As David Rock noted:
Peronism, its constituents claimed, also made a major contribution to the nation’s “spiritual”
development. In a world divided by the Iron Curtain, the doctrines of justicialismo offered an
alternative to both capitalism and communism. To its adherents justicialismo was a social-
Christian philosophy rooted in Catholic and Aristotelian precepts of justice and harmony
(Rock 1987, 264).
Thus, Peronism called for a radical restructuring of Argentine politics, economy,

society, and even the relationship between faith and public action. The preamble of
the Constitution of 1949 incorporated these themes by declaring a “Nation socially
just, economically free, and politically sovereign” (Rock 1987, 289).
In the process of drafting a new constitution with the political and economic goals
of Peronism, Colonel Domingo Mercante, Governor of the province of Buenos Aires
and president of the constituent convention, steered the political side of constitution-
making (Koenig 2015, 93). Arturo Enrique Sampay adeptly led the legal side of
drafting the constitution with a cadre of jurists of varying political allegiances, none
of with whom Sampay perfectly aligned. He did, however, share with the group a
strong sense of nationalism and a Catholicism that had already schooled them in
many of the foundational writings of the church’s social teaching (Koenig 2015, 95).
In this way, Sampay’s views of constitutionalism and economy were in accord with
the cultural and spiritual revolution of Perón’s Christian humanism of the 1940s and
the social doctrine of the Roman Catholic church (Madaria 2012, 525, 555–565).
Christian humanism and neo-Thomism were part of the national spirit, and Sampay
shared in these movements (Arias Pelerano 1995, 16–17). The constitution reflected
the church’s social doctrine not only in the area of property but also in addressing areas
of “special rights” related to work, strikes, family, old age, and education (Madaria
2012, 560–562). Sampay, describing later the overall nature of the constitution, wrote:
In summary, the so-called “Constitution of 1949” proposed to make an effective government
from the popular sectors, to free the country from imperialism, placing financial resources,
natural resources, and the principal goods of production in the control of the state with
the goal of organizing them through planning to achieve an independent and harmonious
development of the economy that produces modern well-being to all and to each of the
members of the community. It attempted, in this way, to establish in Argentina the social
revolution needed in the modern world (Sampay 1973, 121–122).
Peronist drafters did not turn immediately to the social function of property for the
Argentine Constitution of 1949. In fact, the first formulation of property in the draft
crafted by José Figuerola directly reacted to the text of the prior constitution by
negating its fundamental ideas of absolute rights. The draft stated:
Property is neither inviolable nor even untouchable, but simply respected when it is useful
not only to the individual but also to the collective (Koenig 2015, 126).
Sampay and the constituent convention substantially modified this language to

introduce the social function of property. Indeed, the social function of property
became the theoretical and ideological core of an entire Chapter of the Preamble of
the Constitution entitled “The Social Function of Property, Capital, and Economic
Activity” (Argentine Constitution of 1949, Preamble, Chapter IV, translated in the
Appendix). This Chapter has been viewed not only as a constitutional focal point
for Argentina in 1949 but also as the core of Peronist political ideology (Koenig
2015, 32). These aspects were singled out by Sampay as essential features of a
constitution that eschewed both the brutalities of unbridled modern capitalism and
statist totalitarianism (Sampay 1963, 115–116, 121).
Central to Peronist constitutionalism, legality, and politics, Chapter IV contains
three articles addressing the social function of property, capital, natural resources,
and public services. The core of the Constitution’s definition of property is found in
Article 38 of the Constitution. An earlier draft stated that the:
Nation shall guarantee private property as a social function and, as a consequence, the same
shall be subject to the contributions, restrictions, and obligations established by law for
general utility (Ramella 2007, 302 n8; Mirow’s emphasis).
This text was later changed to the language that would eventually be found in
Article 38:
Private property has a social function and, as a consequence, shall be subject to obligations
established by law for the common good (Mirow’s emphasis).
This text reveals a minor but extremely important change from the earlier draft
submitted by the Peronist Party which equated property with a social function; prop-
erty now had a social function.
Ramella correctly observed that this change from “as” to “has” importantly shifted
property from Duguit’s concept of not being a subjective right in itself (using “as”)
to a juridical object that was limited by certain obligations (using “has”) (Ramella
2007, 302).
Without naming Duguit, his concept of property was apparently at the forefront
of the formulation of the central article on property in the Constitution of 1949. This
change made the restrictions on property in the Constitution of 1949 consistent with
the general protection of the right to property found in the constitution in Article 26
that all the inhabitants of the nation enjoyed the right, amongst others, “to use and
to dispose of their property” (Constitution of Argentina 1949, Article 26). Further
provisions in the constitution were modifications of this right rather than redefining
the very substance of property itself. In his exposition of this provision, Sampay
specifically remarked that his concept of property had a double function, individual
and social, which worked together (Ramella 2007, 305–307).
274 M. C. Mirow
Articles following the adoption of the social function of property reveal that the
formulation had clear, instrumental aims. This definition of property in the Argentine
Constitution of 1949 was not an aspirational statement or broadly based rejection
of the absolute right to property without practical consequences. Instead, property’s
social function had an immediate and contemplated effect on the legal order of
ownership and the political structure of the country. As elsewhere in the region,
the social function of property was often employed as a necessary step towards or
justification for land or agrarian reform (Ankersen and Ruppert 2006, 88–107; Mirow
2004, 219–227). The social function of property led in subsequent provisions to land
reform, the control of capital, and the nationalization of natural resources and public
services.
The principle of the social function of property was translated and interpreted
by other articles within Chapter IV. The language provided for the expropriation
of foreign capital and the nationalization of various sectors of the economy that
had heretofore been in private, often foreign, hands. This was an about-face from
Alberdi’s constitutional vision and Argentina’s political policy of encouraging and
protecting foreign investment and capital (Koenig 2015, 129–137).
In the context of Peronism, the social function of property implicated state con-
trol of some aspects of the economy, importantly the provision of public services
often provided by foreign companies. The initial draft of the article dealing with
state control, Article 40 within the draft of constitutional reform, was the work of
José Figuerola from the President’s Secretariat, but the final drafting was assigned
to Sampay who incorporated the nationalization of public services. When the draft
article was published, Perón was besieged by demands from American, British,
Italian, and Swiss diplomats to soften the expropriatory aspect of the article. As
principal drafters of the constitution, Sampay and Mercante held their ground, and
the provisions for nationalization stood (Koenig 2015, 112–113). Telephone service,
transportation, gas, ports, and railroads—held mostly by foreign interests—were
nationalized (Koenig 2015, 163). Sampay’s unwillingness to yield to external politi-
cal presures and to soften the application of Article 40 as requested by Perón created
a rift between the drafter and the president, and it appears that relations between the
two were never as cordial as before. From 1952 to 1973, they did not see each other
(Madaria 2012, 547–548, 552–553).
Even with the modification from “as” to “has”, the formulation of Article 38
closely followed Duguit’s construction of the doctrine. Nonetheless, despite Duguit’s
historic connection to Argentina, his work was only a minor source that shaped the
Peronist ideas of the social function of property.
Well versed in constitutional theory, Sampay did not directly draw on Duguit
(Sampay 1973, 6–70). Sampay’s legal education placed him within the orbit of neo-
Thomist Christian humanism. In addition to initial studies in Uruguay, he completed
his legal training at the law and social sciences faculty of the National University
of La Plata (Argentina) where he obtained his doctorate (Arias Pelerano 1995, 10).
Sampay then studied various aspects of law in Zurich, Milan, and Paris. Particularly
important for our purposes was his attendance at lectures in Paris by Louis Le Fur
on natural law and by Jacques Maritain (Madaria 2012, 542–543), perhaps the era’s
most important proponent of the neo-Thomism, one of the underpinnings of Rerum

Novarum (1891) and the social function of property (Mirow 2016a). Sampay later
noted the Thomist doctrine of the social function of property in the Irish Constitutions
of 1937 and 1940 (Buela 2007). Thus, Catholic social teaching and neo-Thomism
were at the heart of Sampay’s understanding of the social function of property. His
traditional Thomist approach to law clashed with those who moved Peronism to the
left, and it appears his contributions were discounted by Peronists and later spurned by
post-Peronist who returned Argentina to classical liberalism (Koenig 2015, 30–31).
Just as the papal encyclical Rerum Novarum (1891) and Duguit’s concept of the
social function of property sought to establish a third way, a golden mean, between
compassionless absolute rights in property under the principles of classical liberalism
on one hand and communal and state ownership of all property on the other, Sampay,
following tenants of Christian humanism, sought a construction of property that
would further the common good and just order (Koenig 2015, 104). Indeed, it appears
that Christian humanism served as a bridge between Sampay’s construction of the
social function of property and Duguit’s original formulation.
Although the Argentine Constitution of 1949 adopted the social function of prop-
erty, it must be noted at the outset that in the entire body of reported sessions of
the constituent convention, Duguit is only mentioned once by name in relation to
the social function of property (Sampay 2012, 22; Diario, vol. 1, 315). This paucity
of references to the founder of the social function of property, a founder who had
significant ties to Argentina, Buenos Aires, and legal education in the country, is
striking.
11.2.1 Interventions on the Social Function of Property

in the Constituent Convention
Legal historians are fortunate to have complete records of the sessions of the con-
stituent convention related to the social function of property. This source shows a
confluence of ideas concerning property and the constitution leading to the adoption
of the social function doctrine. Within the constituent convention, four leading mem-
bers advocated for the social function of property: Arturo Enrique Sampay; Rodolfo
Valenzuela, a justice of the Supreme Court; Oscar Martini, a Socialist university
professor; and Jorge Simini, a deputy from the province of Buenos Aires (Koenig
2015, 116).
Sampay’s interventions to the constituent convention reveal his justifications for
introducing the social function of property into the constitution. Private property
could not be abolished because it had important ties to human personhood and indi-
vidual liberty. Private property, however, was also tied to community and social
life (Diario, vol. 1, 277–278). From these dual aspects of private property, Sampay
concluded:
276 M. C. Mirow
It follows, then, that private property – despite maintaining its individual character – assumes
a double function, individual and social…. The proprietor – the concept is from Saint Thomas
Aquinas – has the power of administration and just distribution of the benefits that the exterior
goods possessed produce – potestas procurandi et dispersandi – with which property fills
its double commitment. It meets an individual end covering the needs of the possessor and
a social end by shifting the rest to the community. The constitutional reform should be
dedicated to this; together with the individual function of property, the obligatory nature of
the social function that goes with it – now legally sanctioned in the country through the law
of agrarian transformation – and that makes this institution the indispensable piece of the
new Argentine economic order (Diario, vol. 1, 278).
In Sampay’s thought, Thomas Aquinas provided the theoretical basis for the social
function of property which, in turn, could be put into practice through redistributive
projects, such as agrarian reform, for the benefit of society.
Valenzuela argued along the same lines, but elaborated on these themes and cited
Duguit in his intervention (Koenig 2015, 117). Valenzuela asserted that individual
liberties, such as the right to property, were not ends unto themselves, but rather were
to serve the well-being and development of the collective. Such liberties had a social
function (Ramella 2007, 309).
Valenzuela’s broad themes are the transformation of the state and the limita-
tions social rights impose on individual rights. In this context, Valenzuela referenced
Duguit to assert that states have transformed; “the state loses its Napoleonic form to
adopt a wider, more flexible, more protective and more human form” (Diario, vol. 1,
315). Valenzuela illustrated this principle with various twentieth-century social con-
stitutions, mentioning Mexico, the Weimar Republic, Estonia, Poland, Yugoslavia,
Danzig, Brazil, and France (Diario, vol. 1, 315). Turning to the topic of private
property, Valenzuela opined that Argentina must find a middle path between Soviet
communism and classical liberalism; he suggested eschewing theories and schools
of thought to reach a form of private property appropriate for Argentina (Diario, vol.
1, 322).
Seeking to justify the social function of property with historical practices, Valen-
zuela searched deeply for hints of the social function of property in texts that were
uniformly associated only with the absolute right to property under classical liber-
alism. For example, he found that Napoléon had commented on the famous Article
544 of the French Civil Code of 1804 that the abuse of property should be avoided
when it was prejudicial to society (Diario, vol. 1, 323; Ramella 2007, 310). This
slight nod in the direction of the public good appears to have been immediately
forgotten; indeed Napoléon’s French Civil Code of 1804 and its characterizaton of
property were the ideas against which Duguit reacted to construct his theory of the
social function (Duguit 1920; Mirow 2011, 1190). Valenzuela also carefully drew
out language from comments by the Argentine codifier Vélez Sarsfield that appeared
to soften a hardline approach to property as an absolute right. He noted that Vélez
Sarsfield also recognized that absolute dominion was subject to “the limits and under
the conditions established by law” (Diario, vol. 1, 323; Ramella 2007, 310). This was
wishful thinking in light of Vélez Sarsfeld’s rather clear adoption of an absolute right
to property, again the very intellectual construction of property that Duguit reacted
against to put forth his doctrine of the social function. Nonetheless, Valenzuela’s
argument demonstrated the lengths proponents of the social function would go to

rally historical sources to justify their position.
With his thought on private property informed by foreign constitutions, competing
political theories, and recent examples of social limitations imposed on absolute
ownership, Valenzuela stated:
The solution to this important question is found in the characterization of the right to property
as a social function. This is supported by current commentary, the observation of social
phenomena in the last century, an appreciation of the present Argentine phenomenon, and
the example of European and American countries that, before us, were pressed to adjust their
constitutions to the necessities of the times (Diario, vol. 1, 323–324).
Valenzuela discussed several of these constitutional models with particular atten-

tion paid to the Mexican Constitution of 1917 and the Polish Constitution of 1921. He
mentioned other constitutions as examples: Peru (1938), Bolivia (1938), Cuba (1940),
Ecuador (1946), Guatemala (1945), Chile (1925), Colombia (1936), Brazil (1946),
Venezuela (1947), Dominican Republic (1947), and Nicaragua (1947) (Diario, vol.
1, 324). Supporting the social function of property in the Argentine Constitution,
Valenzuela concluded:
By proposing in Article 38 of our Constitution that it expressly state that private property has
a social function, we intend to resolve juridically the economic disorder that the individualist
concept of property has imposed on the social nucleus, we establish the true content of this
right and in passing assign the principle of relativity to all other rights (Diario, vol. 1, 325)
This new concept of property led to concrete changes, such as state ownership of
natural resources and state control of public services (Diario, vol. 1, 325–326).
Martini’s views of property were also shaped by Saint Thomas Aquinas and
Christian humanism, and, in this way, sought a balancing point between communism
and capitalism in the social function of property (Koenig 2015, 117). Martini spoke
at length about the history and theory of property and was particularly influenced
by Emmanuel Mounier’s De la propriété capitaliste à la propriété humaine (Diario,
vol. 1, 514–515; Ramella 2007, 312). Mounier was a neo-Thomist Catholic convert
and philosopher. The book, published in a series edited by Jacques Maritain, was a
primer on Thomist property law reflecting Christian humanism and Catholic social
doctrine. It is riddled with citations to Aquinas and peppered with references to the
encyclicals of the church’s social doctrine. It does not mention Duguit (Mounier
1936).
In addition to Mounier, Martini drew from several other neo-Thomist writ-
ers including works by the Belgian Christian trade unionist Georges C. Rutten
(1875–1952) and Louis Garriguet (1859–1927) (Lane 1995, 828). Quoting a Spanish
translation of Rutten’s La doctrine sociale de l’Eglise, Martini asserted:
According to the express doctrine of Saint Thomas, property of these goods is not an absolute
and unconditional right, but a power of administration and distribution, marked with a kind
of social obligation that directs the owner to use his property for the good of the collective
(Diario, vol. 1, 515).
Through Thomism, Martini recognized the private and social function of prop-
erty in the Constitution of 1949 (Diario, vol. 1, 515). Martini similarly employed
278 M. C. Mirow
Garriguet’s La propriété privée to distinguish the social function of property from

collective ownership and to set out the Thomist theory of the origin of property itself
(Diario, vol. 1, 515–516). Like other proponents of the social function of property,
Martini as deputy invoked Aquinas and Christian humanism to establish property’s
role in the physical and spiritual well-being of the community (Ramella 2007, 312).
Jorge Simini’s intervention operated on a more practical plane. He focused on
the redistribution of lands and the transfer of ownership to agricultural workers of
the land. His approach was more political than theoretical or legal (Ramella 2007,
314–315). Thus, deputies brought different levels of commitment to and comprehen-
sion of the social function of property to the constituent convention.
Unlike Simini’s arguments, most of the interventions of these deputies revealed
a focus on Christian humanism as a component of a European legal thought. All
proponents of the social function of property were versed in the social teaching
of the Catholic church as an outgrowth of Christian humanism and neo-Thomist
thought on society, economy, work, and property as found in the encyclicals Rerum
Novarum (1891) and Quadragesimo Anno (1931). This perspective on property was
particularly important to Sampay and served as common ground in their approach
to the topic (Madaria 2012, 555–560). These underpinnings of the social function
of property appeared to be much more influential than the tradition based on sec-
ular European sociological treatises that included Duguit and his works. This later
tradition, however, was not completely absent.
11.2.2 Argentine Legal Culture and Academic Commentary
These drafters of the Constitution of 1949 shared a common heritage of Argentina’s

unique legal culture. The first half of the twentieth century was a particularly rich
and engaging moment for students, teachers, and practitioners of law. Sharing in a
broader trend of the cultivation of knowledge, Argentine universities and their law
faculties became centers for the serious academic investigation of their discipline.
For example, the library at the faculty of law at the University of Buenos Aires
was a significant research collection of approximately 12,000 volumes replete with
European and American sources (Tau Anzoátegui 2007, 13–14). Students, professors,
and lawyers were steeped not only in Argentine legal knowledge but also in materials
and thought from throughout Europe. As Tau Anzoátegui summarizes:
Argentina, a country of immigrants, was open to the reception of European juridical literature
– French, Italian, Germany, Spanish – and in particular, Anglo-American works in some areas
of law. The names of author-jurists such as Savigny, Ihering, Stammler and Kelsen; Gény,
Saleilles, Planiol and Duguit; Ferri, Del Vecchio and Chiovenda; Altamira, Posada, Jiménez
de Asúa, amongst others, were well known in the classrooms and in works written in the
country, without neglecting the older classics of philosophy, politics, and jurisprudence (Tau
Anzoátegui 2007, 15; Mirow’s emphasis).
Classroom lectures, books and their citations were supplemented with international
correspondence, networks of scholars, and travel. The period from 1901 to 1945 also
witnessed the adoption of broader sociological approaches to law, pushing lawyers

away from a textual, code-centered analysis to questions of societal impact and later
back again to doctrinal approaches (Tau Anzoátegui 2007, 15–35). Despite such
fluctuations over these decades, the drafters of the Constitution of 1949 would have
been exposed to and adopted or critiqued such authors and their ideas, Duguit and
his works amongst them. Thus, scant citation to Duguit’s work and thought does not
exclude familiarity with them and their influence on the provisions of the Constitution
of 1949 addressing property.
Sources of the social function of property in the Argentine Constitution of 1949
are not limited to the debates by the deputies in the constituent convention. Ramella
has uncovered and described an additional significant source for legal historians of
the social function of property, a set of questions to and responses from the law
faculty of the University of Buenos Aires conducted in 1948 in light of the new
constitution (Ramella 2007, 324; Facultad de Derecho). Several professors raised the
social function of property and the importance of placing this definition of property
in the new constitution. These included Miguel Ángel Berçaitz, Máximo Gómez
Forgues, Carlos Mouchet and Alfredo R. Zuanich who approved the incorporation
of the social function of property as found in the draft constitution (Ramella 2007,
327–328). Other professors explored the topic at greater length.
Recognizing the difference between Duguit’s concept of “property as a social
function” and the less transformative idea of “property having a social function,”
Professor of civil law Fernando Legón suggested that the second formulation would
strike the appropriate balance between the individual and the collective (Ramella
2007, 328). Without such direct references to Duguit, several other professors—
Héctor Llambías, Juan Villoldo, Bargallo Cirio, and Moyano Llerena—noted the
importance of the common good, service, and human life in relationship to property
(Ramella 2007, 328).
In addition to the answers to this questionnaire, Salvador Dana Montaño, the
director of the same institute, offered his thoughts on property in a contribution
to a conference on philosophy originally scheduled for 1948 but held a year later.
Published as Justicia social y reforma constitucional, the book treated the question of
property extensively in seven chapters. There is not one mention of Duguit, but Dana
Montaño makes a rare reference to the Chilean Constitution of 1925 whose property
provisions were based directly on Duguit’s work (Montaño and Salvador 1948, 117;
Mirow 2011). His conclusions were in keeping with the ideas expressed above and
specifically adopted the viewpoint of Christian humanism over European theorists to
place restrictions on the unbridled exercise of property (Montaño & Salvador 1948;
Ramella 2007, 329–330). Although employing distinct terminology, these professors
all sought to modify the idea of an absolute right to private property by tempering
it with some sense of social obligations to the common good, the collective, and the
human being (Ramella 2007, 328).
Deputies and professors supported Sampay’s adoption of the social function of
property. Further support may have been found in Sampay’s vision of constitutional
goals. Apparently influenced by the political writings of Ferdinand Lassalle, Sampay
sought constitutions that reflected reality as much as possible rather than those that
280 M. C. Mirow
expounded an ideal structure or goals detached from actual constitutional and state
practice (Arias Pelerano 1995, 20; Sampay 1973, 37–39). This view aligned well
with Duguit’s presentation of the social function of property in which he asserted
that property as a social function was a presently accurate description of property
based on numerous illustrations gathered by Duguit from French law (Mirow 2011,
1192). Thus, in the pursuit of real constitutionalism, Sampay, if he were directly
aware of Duguit’s arguments for the social function, would have been drawn to their
present descriptive, rather than future normative, force.
Recognizing a second practical aspect of changing the nature of property in
Argentina, Sampay also knew that this new definition of property had to be extended
from constitutional language into the everyday applicable language of the civil law,
a new civil code. As Sampay noted in this context, “with the exception of family law,
the civil code is nothing more than the ordering of property law” (Diario, vol. 1, 279).
Because a civil code was built on the concept of property, the social function of prop-
erty would become the central aspect of a new civil code (Koenig 2015, 136–137). As
Sofanor Novillo Corvalán commented after the incorporation of the social function
of property into the Constitution of 1949, property in Argentina operated on at least
two planes, a constitutional level dealing with the state and a codified level governing
the day-to-day notions of title and ownership (Ramella 2007, 330). Nonetheless, the
projection of the social function of property into the sources of applicable private law
in Argentina was not accomplished. This lack of penetration into the civil law meant
that there were various levels within which the interpretation of property could take
place (Ramella 2007, 352).
Even on the constitutional level, the redefinition of property had striking conse-
quences. Private property was not abolished; it now had a double function, one indi-
vidual and another social. The social function of property justified “anti-imperialist”
projects of nationalization and the expropriation of foreign capital within Perón’s par-
ticular interpretation of Christian humanism (Koenig 2015, 144–145). The debates
of the drafters and particularly the work and interventions of Arturo Enrique Sampay
reveal the rhetorical strategies used to incorporate this radically new, yet politically
consistent, construction of property into the Peronist constitution. Successful consti-
tutional reform only occurs at particular political moments. Peronists observed the
compatibility of the social function of property with many of their constitutional and
legal reforms. They surely noted the flexibility and utility of the doctrine.
The Constitution of 1949 was not long-lived. It was abolished by military dic-
tators and erased from the political and legal history of Argentina (Koenig 2015,
31–32). In 1955, anti-Peronists ushered in a coup under Eduardo Lonardi, a national
Catholic military officer (Koenig 2015, 211). On April 27, 1956, President Aram-
buru decreed that the Constitution of 1949 was derogated and that the Constitution
of 1853/1860 with subsequent amendments was in force (Koenig 2015, 231). This
decree marked the end of the social function of property in Argentina and a return of
the absolute protection of private property under classical liberalism and the Consti-
tution of 1853/1860 (Ramella 2007, 308–309; Sampay 1973, 122–124). There were
some unsuccessful attempts to introduce the social function of property during the
constituent convention of 1957, especially as it was tied to agrarian reform and the
redistribution of land (Ramella 2007, 351). The most significant phase of the social
function of property in Argentine positive law was over. The Argentine Constitution
of 1853/1860 with its substantial revisions in 1994 recognized an inviolable right
to private property unhindered by the imposition of property as or having a social
function (Constitution of 1853/1860 revised 1994, Article 17).
11.3 Assessing Duguit’s Influence in Argentina
Tracing Duguit’s work and influence in Argentina provides an example of the way
legal and political ideas in seminal sources can be pulled into other sources, lose an
identifiable connection to the original source, and continue as important features of
legal development without direct attribution. For example, this challenge has been
presented well in studies assessing the contributions of the United States Declara-
tion of Independence and the United States Constitution of 1787 to constitutional
and political thought in the world. George Athan Billias has used the metaphor of
echoes to represent the untraceable reports of legal texts and their content as they
travel the world over time, becoming reflected, absorbed, modified, and softened on
each iteration (Billias 2009). By 1949, Duguit’s works and his theory of the social
function of property had undergone similar appropriations, modifications, and assim-
ilations into other works and, as Levaggi reminds us, into the mentality of cultured
early twentieth-century Argentine jurists. It had echoed back and forth across the
Atlantic Ocean, off and over the Andes Mountains, throughout Europe and Latin
America. Drafters of the Argentine Constitution of 1949 knew Duguit’s writings and
his concepts even if some of them did not mention his name. Duguit was, however,
named, not only directly in the debates related to the social function of property in
the constitution but also by scholars and writers outside this circle of drafters. We do
not find, for example, the multiple references to Duguit in the constituent conven-
tion and direct quotations of his work by the president as in the case of the Chilean
Constitution of 1925 (Mirow 2011, 1200–1205). Nonetheless, Duguit’s works must
be added to a list of multiple sources and influences that led to the adoption of the
social function of property in Argentina.
The different paths that countries of Latin America took to incorporate the social
function of property into their constitutions at different times serve to caution legal
historians of the region. One must not jump to conclusions of similarity of develop-
ment when observing similar ends. The examples of Argentina, Chile, and Colombia
demonstrate this well (Bonilla 2011; Mirow 2011). Nonetheless, similar approaches
to sources, texts, foreign influences in Latin America meant that even in these three
distinct cases, Duguit served in one way or another as an important author (Bonilla
2011, 1154–1159). Brazil, however, adopted a social function of property without
direct reference to Duguit, but the influence of Duguit’s thought on developments in
the country remains unsettled (Crawford 2019; Cunha 2011).
Just as Latin American countries adopted the social function of property in various
ways and at different times, they employed the term and its theory in different political
282 M. C. Mirow
contexts and with different goals in mind. The Peronist adoption of the social function
of property was consistent with contemporaneous constructions of a Peronist state,
economy, and political structure. Peronists interpreted “social function” in light of
the political exigencies pressing on the state, the economy, and its legal system. Not
recognizing the political and legal malleability of the term, those leading the coup of
1955 determined that such a term and its interpretation had best be abolished rather
than adapted.
This rejection of the social function of property in Argentina may be contrasted
with appropriation of the social function of property in Chile by left and right. Both
Presidents Allende and Pinochet found the term useful because each could carefully
design programs, policies, and actions around their own definition of the “social
function” (Mirow 2011, 1216–1217). In these contexts, “social function” has no
fixed meaning and suffered from indeterminacy (Esquirol 2017, 340–341). Indeed,
in the context of the Argentine Constitution of 1949, the scholar Carlos Enrique
Mackinnon observed that an inherent danger in the social function of property was
its openness to various interpretations by leaders and politicians with opposite ideas
of government and the common good (Ramella 2007, 330).
Diversity of legal experience exists not only in the exterior but also within the
interior. This study has focused exclusively on national developments. In a country as
varied as Argentina and with a history of strong regional distinctions and federalism,
interesting work remains to be done on the provincial level and particularly with the
incorporation of the social function of property into provincial constitutions. Indeed,
Koenig noted the existence of 14 provincial constitutions that incorporated the social
function doctrine, and Parise also mentioned the doctrine in several provincial con-
stitutions (Koenig 2015, 43; Parise 2017, 217). The use of provincial sources in this
national development remains unknown.
Similarly, this study has made only passing reference to civil codes and judi-
cial opinions. In civil law countries, theoretical understandings of property are often
transferred into positive law in civil codes as well as in constitutions. Judges may
reveal their interpretation of these provisions through the jurisprudence of case law.
While constitutional provisions are now widely accepted as governing the subsidiary
law of codes and the content of private law, this hierarchical structure was not always
clearly established. This ambiguity of hierarchy in sources was particularly apparent
in the field of property where scholars and practitioners of private law often suc-
cessfully asserted the primacy of civil code provisions and their underlying origins
in Roman law and the ius commune against novel and broad definitions of property
found in the public law sources of constitutions. Thus, modern scholars attempting to
understand the construction of property in early twentieth-century Argentina must be
aware of the tensions and contradictions expressed by members of the legal academy
and profession. This is particularly true in the exploration of the social function of
property because Duguit’s analysis purported to be descriptive of changes in property
that had already occurred in the advanced legal and economic societies of Europe
and Latin America.
Duguit’s work was a source for the Argentine construction of the social function
of property from its introduction in 1911, during the first half of the twentieth century,
and until the repeal of the Peronist constitution in 1956. Although mentioned in the
debates of the Argentine Constitution of 1949, Duguit was only one of a variety of
sources employed by advocates of the doctrine, and his direct influence in the area
was significantly less than one might expect considering the historical link between
his lectures in Buenos Aires and the founding of the doctrine. Argentine proponents
of the social function of property appear to have turned more readily to emanations of
the doctrine found in Catholic social teaching and its foundational documents such
as the papal encyclicals Rerum Novarum and Quadragesimo Anno. Duguit’s work
was present, but it was not a singular voice in the field.
Appendix
Chapter IV of the Preamble of the Constitution of Argentina (1949).

Chapter IV. The Social Function of Property, Capital, and Economic Activity.
Article 38—Private property has a social function and therefore is subject to the
obligations towards a common good established by law. The State must control the
distribution and use of farmlands or intervene in order to develop and enhance their
productivity in the interest of the community, and ensure to all farmers or farmer-
families the opportunity to become owners of the land they cultivate. Expropriation
for reasons of public utility or general interest must be authorized by law and previ-
ously compensated. Only Congress imposes the taxes mentioned in Article 4 [of this
constitution]. Every author or inventor is the exclusive owner of his work, inventory
or discovery for the term provided by law. Confiscation of property is abolished for-
ever from Argentine legislation. No armed group can make requisitions or require
assistance of any kind during time of peace (translation from Parise 2017, 216).
Article 39—Capital should be for the service of the the national economy and
have as its principal object the social well-being. Its diverse forms of exploitation
may not be contrary to the ends of the public good of the Argentine people.
Article 40—The organization of wealth and its exploitation have for their end
the well-being of the people within an economic order conforming to the principles
of social justice. The state by means of law shall be able to intervene in the econ-
omy, monopolize certain activity in safeguarding the general interest and within the
limits established by fundamental rights guaranteed in the Constitution. Excepting
importation and exportation, which shall be governed by the state in accordance
with the limitations and procedures determined by law, all economic activity shall
be conducted in accordance with free private initiative, as long as it does not have its
ostensible or hidden goal of dominating national markets, eliminating competition
or unfairly gaining benefits.
Minerals, water courses, deposits of oil, carbon and gas and the other natural
sources of energy, with the exception of vegetables, are the unassignable and inalien-
able property of the Nation with the corresponding participation in their production
as shall be convenient for the provinces.
284 M. C. Mirow
Public services belong originally to the state and under no condition may they be
transferred or conceded for their exploitation. Those that find themselves under the
power of individuals shall be transferred to the state, through sale or expropriation
with prior indemnification when determined by national law.
The price for the expropriation of business concessions of public services shall
be the original cost of the goods as affected by the exploitation less the sums that
have amortized during the lapse completed from the grant of the concession and the
excess above a reasonable profit which shall also be considered as the recovery of
investment capital.
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Part IV
of Property—North America
Chapter 12
The Social Function of Property, Credit,
and Capital in the United States
Christopher K. Odinet
Abstract Leon Duguit’s work on the social function of property has had a significant
impact on American law, in ways both direct and indirect. His description of property
rights as moving away from an individualistic-centered theory to one that contem-
plates collectivism and pluralism—the social solidarity of the law—has touched not
only traditional forms of property, such as land, but has also had a profound impact on
the how American law addresses the flow of capital and as how it deals with discrim-
ination and historical inequity. This chapter explores Duguit’s social function theory
in American law through the lens of common interest community developments,
consumer financial protection, and civil rights legislation.
Keywords Common interest communities · Capital · Credit · Mortgages · Civil

rights · Consumer protection · Finance · Dodd-Frank · CFPB · Homeowners ·
Covenants · Land restrictions · Loans · Debt · Household finance · Housing
discrimination · Right to exclude · Fair housing
12.1 Introduction
In the early part of the seventeenth century, France was in disarray (Blanchard 2013,
163). Not only was the country incredibly divided between warring factions of mem-
bers of the nobility and the rising merchant class, but the country was extremely
vulnerable to attack. France was surrounded on all sides by the vast and sprawl-
ing Hapsburg Empire, which ruled over the modern-day Netherlands and portions
of Belgium, all of Spain, and a large part of Italy (Kann 1980, 1–4). Further, the
monarchy itself was constantly beset with challenges and threats from within the
country’s borders. The king’s cousins, called the princes of the blood, alongside
members of the military, the urban law courts (known as the parlements), and the
growing middle class staged an unsuccessful civil war in 1648 known as the Fronde
(Barringer 2014, 21–25). The war would not end until 1653, and it resulted in the
C. K. Odinet (B)
The University of Oklahoma, 300 Timberdell Road, Norman, OK 73019, USA
e-mail: codinet@ou.edu

290 C. K. Odinet
death of more than 50,000 individuals (Clodfelter 2002, 40). During this time, local
officials openly defied and even fought against agents of the Crown, all alongside
members of the nobility who demanded more rights and privileges—many of which
had been taken away or curbed by prior rulers in the preceding years (Bercé 1995,
20). With a weak central government under the minority of the then-king Louis XIV,
rebellions regularly broke out across the countryside as the aristocracy asserted more
and more authority and pushed back against any attempts to further centralize the
administration of France. They frequently took arms, claiming they had a “right to
revolt” and that the crown was becoming autocratic in violation of their historical
rights (Drazin 2008, 68).
The aristocracy fiercely resented losing their privileges and prerogatives, partic-
ularly their exemption from paying taxes to support the expenses of the country
(Cavanaugh 1974, 681). They claimed that their insurrection against the government
was all done in an attempt to restore the true and more authentic form of government
to France—one whereby power was shared between the Crown and the aristocracy,
rather than under a system that relied upon ministers with expertise in a given area
and who were primarily answerable to the king. In reality, many historians note that
the nobility wanted only to return to the customs and rules of the medieval period
where each was king of his own domain and the true king was more figurehead
than sovereign (Moote 1971, ix). This multi-year period of internal strife resulted in
economic hardship and much physical devastation for France. An already famine-
stricken populace was hard hit by the many battles and skirmishes that broke out
between the royal forces and the Frondeurs (Fitzpatrick 1873, 280). Records from
this period “show a condition of exceptional misery.” (Perkins 2017, 409; Ladurie
1987, 224).
What followed the Fronde was a revolution in the political and social system that
had long prevailed in France (Smith 1996, 11). To accomplish such a feat, Louis
XIV began by taking a small hunting lodge outside of Paris and transforming it into
the grand and opulent Palace of Versailles. He declared that Versailles, not Paris,
would from this point forward be the center of France. Furthermore, Louis XIV set
about taking control of all those who had opposed him—primarily the rebellious
nobility. In their seats of power in the far-flung provinces of France, members of the
nobility had much time to plot and scheme for their own advancement. This often
came at the expense of France, as the welfare of its people were often subject to the
uneven, and sometimes arbitrary, whims of the local lord (Ladurie 1987, 267). To
replace this rudderless system, the king demanded that all members of the nobility
come to live—on a permanent basis—at Versailles. To entice them to stay and remain
faithful to the crown, and thus to France, the king made it clear that benefits such as
titles, political positions, advantageous marriages, lucrative pensions, and positions
of influence required residence at the palace (Smith 1996, 42; Perkins 2017, 413).
Once there, nobles would have to use their charms, talents, wit, and intellect to attract
the gaze of the king and thus incur favor; those who chose to remain on their estates
would be frozen out completely.
But central to this organization—where the nobility acted as stars and planets
orbiting the Louis XIV, the Sun King—was a system of roles, duties, and jobs that
12 The Social Function of Property, Credit, and Capital … 291
were to be undertaken by the aristocracy—some formal and some more informal. No

longer was it acceptable for the nobility to merely exercise their selfish desires for
power, glory, and war. No longer could they merely ignore the rest of the country in
preference to their individual domains. Rather, Louis XIV reordered the social and
political fabric of France by giving the nobility a function, a task, and purpose. Their
duty was to exemplify the glory, splendor, and success of France. They were to use
their talents, their position, and their wealth for the benefit of the country—even to
the detriment of their own individual aggrandizement (Smith 1996, 42–43).
Over time, this system of service, duty, merit, and function overtook the individ-
ualistic nature of the French ruling class that had long prevailed and often caused
civil strife and economic hardship. As Smith notes, the general feeling that devel-
oped at court was that “[t]o help the king govern the realm, to serve him well in
whatever capacity he required, one had to be endowed with the necessary quali-
ties—the capacity for generosity, courage, and fidelity” (Smith 1996, 43). Everyone
of consequence came to Versailles to take part in this new system. On any given day
there were anywhere between 3,000 and 10,000 people at the palace, all moving in
unison to fulfill their functions in the grand design of bringing order and stability
to France through submission to the crown and the patronizing of French painters,
musicians, poets, tradesmen, architects, artists, and more. Some nobles were given
specific—albeit honorary—tasks, such as the right to hand the kind his shirt in the
morning, to manage the royal stables, and to serve the king his meals. And still some
other nobles came to serve in high-level positions in the administration or church,
such as in ministry-level positions or as heads of bishoprics or abbeys.
By the end of Louis XIV’s reign, the rebelliousness and the strong individualism
that had saturated the French legal and political system had given way to a cen-
tralized administration where beauty, intellect, and skill among the nobility became
the currency of the court system—a system that was underpinned by a structure
whereby each had his duty, his function, and his role to play in the glory of France.
During this period, France became an economic superpower, which in turn helped
bring a level of stability to the country. The consolidation of power in the central
government allowed for the creation of the intendent administrative system, which
improved tax collection and sharply reduced the deficit, as well as improved the lives
of average Frenchmen (Seherr-Thoss 2007, 235). It also resulted in the monitoring
and quality-control of production within France (Mikosch 1990, 53–55). This led
to a greater number of exports and more money for the French economy, which
had traditionally been reliant on imports from other countries. In order to improve
domestic trade within France, various roads, canals, and other infrastructure projects
were built throughout the country (Downing 1992, 128).
Although perhaps not obvious to Leon Duguit, Louis XIV’s system at Versailles—
his transformation of the political and social fabric of France—was symbolic of the
famed French jurist’s explanation of the transformation in private law—particularly
in the law of property—that had occurred since the time of the adoption of the Code
Napoleon up to the period of his renowned 1991 lectures in Buenos Aires, Argentina
(Parise 2017, 194). In these lectures, Duguit argues that property law had slowly come
to shift away from a more individualistic and metaphysical foundation—one where
292 C. K. Odinet
“man is free in his isolated and independent state”—to one that is more centered on
a social function—the idea of “social solidarity” and the relationship among men
(Duguit 1918, 132, 98). Duguit points to numerous examples of the traditionalist view
as enshrined in law. For instance, Article 17 of the French Declaration of the Rights
of Man speaks of “[p]roperty being a sacred and inviolable right.” The Argentine
Constitution declares that “[p]roperty is inviolable” And Article 544 of the Code
Napoleon declares that “[p]roperty is the right of enjoying an object in the most
absolute manner.” (Duguit 1918, 131).
Importantly, Duguit did not purport to say that the law was moving away from
established property rights. He admitted openly in his lecture that the right of property
must exist for “[i]t is the indispensable condition upon which rests the prosperity and
greatness of society; collectivism would be a return to barbarism.” (Duguit 1918, 74).
More specifically, Duguit declared: “I do not say, and I have never said or written, that
private ownership as an economic institution is disappearing or should disappear.”
(Duguit 1918, 134). Instead, he asserted “merely that the legal notion upon which
protection of property is founded is being modified. I will go even further and say that
it is more strongly protected under the new than under the old conception.” (Duguit
1918, 134).
Just as with France in the 1600s, rampant individualism can be chaotic, and Duguit
argues persuasively why, in fact, it never truly has worked in insolation. Quoting
Auguste Comte, Duguit states that “in any normal phase of human history, each
citizen really is a public officer, whose functions, more or less clearly defined as the
case may be, determine both his obligations and his powers.” (Duguit 1918, 134).
This gives birth to Duguit’s idea of property as a social function—“a duty, to develop
to the greatest extent possible, his intellectual, physical, and moral personality in
order to perform his function effectively.” (Duguit 1918, 74).
This chapter shows how Duguit’s function/duty-oriented approach to property
law has been represented in American legal institutions—particularly those involv-
ing common interest communities, consumer financial protection, and civil rights.
Like in France under Louis XIV where the individualism and autonomy of the nobil-
ity gave way to a system of purpose and duty to king and country, American law has
also variously made a similar shift—curtailing the absolutist and sometimes rigid
principles of early property law in favor of ideas that introduce duties and respon-
sibilities to the notion of property ownership—all with an aim toward the common
good. Duguit declared at the time of his lectures that “the entire individualistic system
of property law is disappearing.” (Duguit 1918, 132). He argued that “the individual
can have rights only so long as he lives in society and only by reason of the fact
that he lives in society.” (Duguit 1918, 73). Without the relational aspect of life,
rights—including property rights—cannot exist. Duguit therefore stated that “[t]he
old system of individualism (divorced from the reality of living in society) has faded
away and is being replaced by purely realistic ideas.” (Duguit 1918, 73). That realistic
idea, to his mind, is one of a social function.
12.2 Duguit’s Social Function Theory in the United States
The social function theory of property manifests itself in a number of ways in the
United States. Some of them are more direct, evidencing a clear and distinct decision
by the legislator or the court in shaping property law or directing property norms
toward a social and collective ideal. At other times, Duguit’s ideals appear in more
subtle forms, weaving themselves quietly through areas that might not seem apparent
or even noticeable to the casual observer.
Below I draw upon three specific examples where this direct and/or indirect man-
ifestation of Duguit’s social function principle of property or private law appears.
Sometimes it comes in the way of entire frameworks dealing with property rights
in land—the most traditional of the property forms. But at other times it comes in
the way of the imposition of duties as to how capital—yet another type of property
although not often conceived as such—may be deployed. And finally, it can be seen
through the way the law limits the often lauded “right to exclude”—the supposed
sine qua non of property rights (Merrill 1998, 752). Each one is addressed in turn
below.
12.2.1 Through Common Interest Communities
The first example of Duguit’s social function of property in American law can be
seen through the modern common interest community. These are types of real estate
developments that, at their heart, are aimed at creating a shared community where
parties individually give up certain rights in exchange for the good of the larger
group—usually to achieve goals such as uniform standards of beauty, quality, and
sophistication (Wiseman 2010, 699–700). These factors are directly connected to the
development’s value, how people view the community, who chooses to live or work
there, and even the level of safety and security that the area enjoys (Duany and Plater-
Zyberk 1991, 9–11). These communities are created, from a legal perspective, by a
comprehensive and complex set of rules, restrictions, and real covenants imposed on
the real property itself to not only ensure that the development obtains the desired
level of quality and beauty, but also that these conditions continue into the future.
This objective is accomplished chiefly through various legal institutions contained
in a wide-ranging legal document called a declaration of covenants, conditions, and
restrictions (Wiseman 2010, 701). To compare this legal structure to Duguit’s theory,
these communities are strikingly different than traditional neighborhoods because the
individualistic nature of property rights yields to the larger rights of the community.
At the heart of every common interest community is the desire to create a space
whereby the inhabitants can exercise control over their given collective environment
(Rogers 2004, 1457). This often takes the form of an association of property owners
whereby the individual owners of the parcels within the larger development band
together to create a form of local quasi-government. This private government, as it
294 C. K. Odinet
were, regulates and controls the affairs of the community (Winokur 1998, 1138). At
other times, this system of community control of property rights takes place in the
context of a condominium regime whereby the various owners of units pool resources
and elect leaders to administer the functions of government and to exercise of the
property rights of others. Also, these collective associations not only regulate and
control, to some extent, the property rights of individual lot or unit owners within
the community, but they also can have direct ownership over certain portions of the
development to hold in favor of the owners—such as a community park, pool, or
space (Wiseman 2010, 725).
One of Duguit’s main focuses when it comes to the social function of property
is the notion that individuals have a duty—a role to fulfill (Duguit 1918, 75). It is
not that individual rights and community rights are balanced against one another, but
rather it is that the law imposes a responsibility that all must undertake to fulfill. If
they fail, then society fails. Duguit notes how this view brings up two very important
elements which represent the interdependence that private law and property law
creates. These two elements consist of the similar needs of the group on the one hand
and the individual needs and talents of the group’s members on the other (Duguit
1918, 75).
The common interest community represents Duguit’s ideal—one where the talents
and abilities of the group are matched with the needs of the group overall such
that each has a duty—connected intimately to one’s ownership of property within
the community—that must be fulfilled in order for the community to succeed. To
make this more concrete, consider the way the common interest community provides
various goods and services to the residents of the development. This can include, for
instance, the maintenance of roads and streets, as well as overseeing regular safety
patrols (Gillette 1994, 1382). To pay for these goods and services, the association
of property owners has a quasi-taxing power, which allows it to charge assessments
against each of the parcels or units within the development (Wiseman 2010, 709).
The pooling of these funds creates a common treasury from which monies can be
drawn for both ordinary and extraordinary maintenance, repair, expenses, and special
projects (Fennell 2004, 829). To those owners who refuse to pay, the association can
levy a lien against their lot or unit and thereby cause issues of unmerchantable title,
violations of existing credit agreements, and commercial viability (Gillette 1994,
1388–90). The obligation to pay, even for expenses that do not necessarily have a
direct benefit for one’s own property, and to have that obligation tied to one’s property
rights is part of Duguit’s ideal. It represents the kind of “social solidarity” and the
“division of labor in society” that Duguit argues property law is moving toward
(Duguit 1918, 75).
Through this complex system of property law—underpinned with covenants, ease-
ments, servitudes, and corporate law—American law has created a comprehensive
way to realize a form of Duguit’s social function theory of property. Common interest
communities, to draw upon Duguit’s words, represent a formalization of “the fact of
the social structure.” (Duguit 1918, 75). It is a way for individuals to collectively join
together “because of their common needs” and their desire for “a life in common”
to use the law to formalize and make more lasting their shared living. Just as Duguit
states that “[m]odern communities are not composed solely of individuals, they are
also made up of groups”, so too do we see modern real estate transaction law coming
to recognize this fact (Duguit 1918, 96). In 1970, there were 10,000 common inter-
est community associations in the United States and by 2016 that number has risen
to 342,000—meaning that 21% of the US population lives in such developments
(Community Associations Institute 2016).
Further, American courts have variously recognized the social function of com-
mon interest communities. For instance, the court in University Commons River-
side Home Owners Association v University Commons Morgantown LLC noted that
“damages only affecting individual units were none the less matters affecting the
[entire] common interest community.” (W Va Sup Ct App 2013, 618). Courts, such
as in Yacht Club II Homeowners Association Inc. v A.C. Excavating, have also taken
note of the collective pursuits of the individuals in the community and how the law
has been shaped to give effect to community goals: “The national trend acknowl-
edge[es] the representative capacity of the association … enable[ing] the association
to represent more effectively its owners in such matters as construction defects …
avoid[ing] the necessity of assignment of claims, powers of attorney or class actions
in many circumstances [and] thereby simplifying and making more practical the
prompt action in the association’s and the owners’ common interests.” (Colo Ct App
2003, 1180).
When confronted with instances where the collective decision-making of the
association’s governing body is questioned, thereby representing a pull back toward
individualism, courts often state reiteration the strong policy preference for giving
deference to the reasoned decisions of the collective body over the objections of any
one member. For example, the court in Grovenburg v Rustle Meadow Associates
LLC declared that judges “will uphold decisions made by the governing board of
an owners association so long as they represent good faith efforts to further the
purposes of the common interest development, are consistent with the development’s
governing documents, and comply with public policy.” (Conn App Ct 2017, 211).
This is because, at a fundamental level, these property constructs, these common
interest communities, serve a valuable purpose—one that cannot realistically be
achieved through a more individualistic view of property. As stated in the Restatement
(Third) of Property: Servitudes, courts are following the modern trend of “taking an
expansive view of the powers of a property-owners association with respect to …
protection of property values in the community through covenant enforcement and
other actions to advance the collective interests of the common-interest community.”
(Restatement 2000, 92).
In creating these legally enforceable structures whereby the community regime
can be imposed and made lasting, American law has come to realize Duguit’s ideal of
law that “protect[s] and guarantee[s] the collective purpose which an individual will
pursues.” (Duguit 1918, 96). Just as Duguit observed so long ago in thinking about
the changing laws regarding legal associations beginning with Le Chapelier Law of
June 27, 1791, legal norms have shifted to focus on how best to realize the changing
winds of society and their collective goals. “[T]he notion is essentially a changing
one, varying with the ideas of each people and period concerning social solidarity.
296 C. K. Odinet
The acts of the members of the association, performed with a lawful aim, are secure
under the law.” (Duguit 1918, 98). To quote the Connecticut Supreme Court, “to
promote the health, happiness, and peace of mind of the majority of the unit owners
since they are living in such close proximity and using facilities in common, each unit
owner must give up a certain degree of freedom of choice which he might otherwise
enjoy in separate, privately owned property.” (Conn Sup Ct 2006, 194). Such is a
testament to Duguit’s social solidarity theory in U.S. property law.
12.2.2 Through Consumer Financial Protection
Another area of American law where Duguit’s idea of the social function of property
law has become manifest is through consumer financial protection. As a preliminary
matter, one typically thinks of land when one thinks of property. And as noted above,
real property is certainly a place where the social solidarity and the functionalist
approach to property, as articulated by Duguit, can be seen. But, the law governing
personal property has also been influenced by Duguit’s work. Indeed, Duguit notes in
his lectures that he means to speak of “capitalistic property”—which includes realty
and personalty—when he speaks of property broadly (Duguit 1918, 130). This broad
definition of property includes capital—an incredibly important form of tangible
wealth. Capital and leveraged access to capital (i.e., credit) has been significantly
touched by the notion that property law has moved away from an individualistic view
of rights toward one that is more socially-oriented.
To understand this shift, one must recall Duguit’s notion of civil liberty. The
traditional rule was, as he notes in his lecture, that one could do whatever one wanted
with one’s property (including nothing) as long as doing so did not injure another
(Duguit 1918, 74). But, with the advent of the social norm of property, everyone
has a duty. That duty is, to the greatest extent possible, to develop oneself—one’s
intellectual, physical, and moral aspects—in order to perform his or her function in
society. But, in executing this duty and in fulfilling these obligations, sometimes the
government has the power to intervene (Duguit 1918, 74).
For our purposes here, it is the lending of money, a type of property and also a type
of activity with respect to property, that is fundamentally bound up in Duguit’s notion
of civil liberty. Under the old rule, one may be said to be at liberty to lend to whomever
one desired and on whatever terms one wished. Such is the individualistic nature of
property—that one can exercise dominion and control over one’s personalty, provided
it does not cause harm to another. But, as Duguit notes, “[c]ertain classes of labor are
dangerous yet indispensable.” (Duguit 1918, 82). The lending of money is certainly
such a labor. The availability of credit is—and has always been—the cornerstone of
the American economy. U.S. leaders have long recognized how important credit is
to the health of the nation. “As Senator Daniel Webster suggested over 170 years
ago, the urgency for the country to keep afloat its credit system was as much of
a concern for national security as it was for the economic health of the nation.”
(Panayides 2008–2009, 13). A healthy and energetic credit system turns the wheels
of the economy. It allows businesses to provide and acquire services and goods and
it likewise allows consumers to avail themselves of the same (Calder 2001, 5–7).
Americans can purchase a home typically because they can obtain a mortgage loan.
They can acquire a car to drive to work often because they can get access to auto
financing. Student loans help individuals gain an education and ultimately a job, and
consumer loans help people purchase the things they need and can also help carry
them during times of financial hardship.
But at the same time, lending can be a dangerous business—particularly for
debtors. Take for instance the case of payday loans—a type of consumer credit
product in the United States but one that is also prevalent in other countries. Payday
lenders are those firms that provide small dollar loans—typically in the neighbor-
hood of $100–$500, and even up to $1,000—with a term of repayment being roughly
anywhere from two weeks to one month (Anderson 2014, 58–59). There are about
20,600 payday loan stores in the U.S. that collectively provide $38.5 billion in loans
to about 19 million borrowers.
But, these loans are routinely decried by consumer advocates as being incredibly
predatory. A number of public policy groups claim that payday loan business models
depend upon a consumer’s inability to afford the loan and the subsequent need to
borrow—and pay additional fees—over and over again to refinance (Montezemolo
2013, 2). These loan fees tend to be quite high, yielding an average annual percentage
rate of 400 or higher. The confluence of these events creates a debt trap, whereby
a borrower who intends to take out only one loan ends up trapped in an endless
cycle of debt (Agarwal et al. 2016, 2). A payday loan borrower on average takes
out eight loans of about $375 annually and spends about $520 on interest (Bourke
et al. 2012, 4). Interest rates on these loans are also quite high. A typical borrower
with a poor credit score might pay around 25% or more in interest on an unsecured
consumer loan from a more conventional lender (Livingston 2011). But a payday loan
lender usually operates differently—charging interest by assessing a certain amount
of money per so much of the loan. So, for instance, payday lenders usually charge
about $15 in interest for every $100 borrowed (i.e., if you borrow $500 then you pay
$75 in interest). When one considers that the average term of the loan is about two
weeks to one month, the annual interest rates is astonishing high. Annualized, the
interest rate on that $500 loan is about 391%. That amount is ten times the interest
rate on the average credit card (Bhutta 2013, i).
As one report by the Center for Responsible Lending notes, “[h]alf of repeat
loans were opened at the borrower’s first opportunity, 87% within two weeks, and
94% within one month of the previous loan.” (Montezemolo 2013, 2). Other studies
have found that payday lenders locate disproportionately in areas with large black
and Hispanic populations, suggesting that such lenders, with their predatory products
and practices, target communities of color (Prager 2009, 3; Evans 2009; Kieler 2015).
Nevertheless, individuals flock to payday lenders and other fringe economy ser-
vice providers because they lack access to traditional consumer financial services.
According to national data, in 2015 about 7% of U.S. households were unbanked
(Federal Deposit Insurance Corporation 2015). This means that no one in the house-
298 C. K. Odinet
hold had a checking or savings account. That number amounts to 9.0 million U.S.
households, comprising 15.6 million adults and 7.6 million children.
But these data belie a larger problem—the underbanked population. In 2015,
another nearly 20% of U.S. households fell into this second category (Federal Deposit
Insurance Corporation 2015) Households bearing this label had a checking or sav-
ings account but they often obtained financial services or products outside of the
conventional banking system. These include payday loans, money orders, checking
cashing services, pawn shop loans, and other expensive products or services that are
offered by companies that operate in the fringe economy.
What is important to note is that for both of these sets of individuals, the unbanked
and the underbanked, payday lenders and similar fringe economy firms are the only
place they can turn to for credit. This, to use Duguit’s assertion, makes the labor
of these lenders indispensable—yet also potentially dangerous. Americans depend
upon access to this kind of credit to get from paycheck to paycheck or to deal with an
unexpected medical expense. But, they must also deal with the potentially predatory
and risky terms under which these products and services are given.
Nevertheless, payday lending is not the only labor that is both indispensable
and yet dangerous in the U.S. credit arena. Home purchase lending—credit that is
secured by a mortgage over the home—has also been shown to be dangerous for
some borrowers. Consider the predatory and risk-loving activity in the residential
mortgage market that preceded the 2008 financial crisis.
Starting in or around the early 1990s, individuals who lacked the ability to qualify
for credit under customary underwriting standards were nevertheless granted mort-
gage loans by banks and other financial institutions across the country (Korngold
2009, 741–42). These subprime borrowers—who almost always failed to under-
stand the nature of the documents they were signing or the obligations they were
incurring—were enticed to enter into these credit agreements by promises of low
interest rates on the front end, which would only adjust to a higher rate a few years
into the term of the loan (Engel and McCoy 2011, 10).
Although these borrowers lacked the ability to make their mortgage payments
once the interest rate spiked, they often took comfort in the thought that they would
be able to refinance their debt for another low interest rate before that time would
arrive. In one account, the initial monthly payment on a subprime loan was $800,
but with subsequent interest rate resets, that amount jumped to $1,100 and again to
$1,700 in future years (Arnold 2007).
Moreover, high fees were typical in subprime lending. In one story stemming
from the crisis, after multiple refinancings a consumer was left with a subprime loan
with a principal amount of $45,000–$19,000 of which was made-up of purely fees
(Engel and McCoy 2011, 21). Compared to more conventional loans, subprime loans
almost always garnered higher fees for the lender. Subprime mortgages typically
earned 0.50% of the value of the loan while more quality mortgage products only
brought with them a 0.20% fee. Also, subprime lenders would typically allow the
consumer to borrow up to the full amount of the value of the home being purchased
and mortgage. At one time, Americans were not able to borrow more than 80% of the
value of the home (CNN 2006). But, by 2005—a mere few years before the financial
crash—the average down payment amount was a meager 2%. Worse still, over 40%
of home buyers were excused from putting down any money at all.
The underwriting process—the exercise by a lender of determining the credit-
worthiness of a borrower—was even more representative of the dangerousness of
the labor of credit. Some lenders fabricated the pay stubs and employment infor-
mation of borrowers in order to form the basis of the loan application (Engel and
McCoy 2011, 30). Also, knowing well that these documents were not legitimate,
many loan officers at banks and other financial institutions accepted letters of credit
from landlords, fake tax returns, or suspicious-looking pay stubs as substitutes for
true statements of income. Some firms even gave gifts or rewards to lender employees
who would look the other way when presented with questionable loan applications
(Engel and McCoy 2011, 30). So-called “no-doc” or “low-doc” loans were common,
as lenders required practically no documentation before making a loan to a borrower
who—for all intents and purposes—had little of the education or background nec-
essary to understand the nature of what they were doing (Baja and Anderson 2008;
Hauser 2007–2008, 1511).
Under these auspices, subprime mortgage lending flourished. Eventually, “sub-
prime mortgages grew from [5%] to over [20%] of all new mortgages” between the
years 1994–2004 (Greenberg 2010–2011, 255). During this period credit was both
dangerous and widely distributed.
Duguit points out, however, that for such dangerous and indispensable activity,
“the legislator should interfere to prescribe proper measures to minimize the danger.”
(Duguit 1918, 83). He rightly points out that those in opposition of law’s interference
in the civil liberty of managing one’s property—in this case, money—often point to
the principle of the “right of the individual to do as he pleases.” But this must fail
because, in intervening and in some way limiting the liberty of the person to do as
he pleases with his capital, the legislator is “imposing measures of safety” that are
aimed at protecting “human life as a social asset.” (Duguit 1918, 83). In his lecture,
Duguit points to efforts by the French Parliament in the late 1800s to enact laws
relative to the safety and health of industrial workers. The theory being that labor
undertaken in an industrial setting is indeed indispensable to the national economy
and welfare, but it is also dangerous such that conditions, if not tended to, can cause
significant individual harm to the workers themselves.
In the context of the United States and lending, here we see a labor both indispens-
able and dangerous. And here, as in France, Duguit’s notion of legislative intervention
so as to create safety measures that seek to uphold human values can be seen quite
clearly through the lens of the Dodd-Frank Act of 2010. In the wake of the financial
crisis, Congress and the President attempted to deal with the fallout and also to pre-
vent a future crisis. Part of their actions involved an overhaul of the U.S. financial
regulatory system. The centerpiece of this effort was the Dodd-Frank Wall Street
Reform and Consumer Protection Act (the “Dodd-Frank Act”), passed in 2010 (Pub.
L. No. 111–203 2010). The over-riding goal of the legislation was to deal with future
risks to the stability of the American economy, to prevent any future “too-big-to-
fail” bailouts of large financial institutions and to create new and strengthen existing
protections for consumers.
300 C. K. Odinet
A key offspring of the Dodd-Frank Act was the newly created Consumer Financial
Protection Bureau (the “CFPB”) (Kaplinsky 2012, 404). Essentially, the bureau was
designed as an independent agency within the Federal Reserve that would focus
on the regulation and enforcement of consumer protection in the financial sector
(Acharya et al. 2010, 73).
The CFPB was given oversight of many areas of the U.S. financial economy, rang-
ing from securities, credit cards, bank and non-bank monitoring, payday lenders, and
student loans. For purposes of this discussion, the CFPB’s authority over the con-
sumer finance sector of the economy is particularly significant. In many ways, it is
through this agency’s work that we can see Duguit’s notion of the legislator inter-
vening into the otherwise free state of property rights with respect to the deployment
of capital most clearly.
The first major project of the bureau was to come up with rules to put an end to the
subprime borrowing and complete lack of underwriting that had been so pervasive
in the pre-2008 housing finance sector (Odinet 2016, 672). In other words, one of
the agency’s first acts was to limit the individual liberty of lending mortgage money
to whomever and on whatever terms. This was a way of controlling the distribution
of property (moving away from an individualistic system) to one that is relational
and aims to protect counterparties—specifically, consumers seeking home purchase
credit secured by a lien on real property. The way in which this was done was by
imposing what had until now been merely good practice: meaningful underwriting.
As noted above, while many mortgage lenders had at various times been more or
less careful when deciding whether and on what terms a consumer should be given
a loan, the CFPB now mandated a minimum level of underwriting for all mortgage
loans. Before this rule, courts had consistently declined to hold that lenders had a
legal duty to determine whether a borrower had the ability to repay when one was
made (Pottow 2011, 178–179). As one court noted: “the lender has no judicially
imposed duty to ensure [the] ability to repay the loan …” Professor Pottow states
that, “lenders [did] not even owe borrowers a duty of care to avoid negligence in the
lending process.” (Pottow 2011, 178). Dodd-Frank changed this by pulling back on,
to use Duguit’s words, “the right of the individual to do as he pleases.” (Duguit 1918,
83).
The legislation sets forth a number of factors that a lender must use when engaging
in the dangerous business of lending so as to ensure that credit is only being extended
to those who are likely to be able to afford it (Odinet 2016, 673). These factors
included looking to a borrower’s credit history, any future income that might be
expected, current liabilities that would compete with repaying the mortgage loan,
and employment information (among others).
But, it is not just in the realm of mortgage lending that American law has shifted
toward limiting the otherwise unfettered ability of lenders to deploy property-capital
as they wish. As of this writing, the CFPB has issued regulations governing the payday
lending industry (Cowley 2017). These new rules seek to cut into the abusive and
unfair practices by certain lenders with respect to loans made to vulnerable consumers
(Odinet 2015, 286). Principally, before making a payday (or similar) loan, the lender
must make a good faith determination that the individual has the ability to repay the
amount. This requirement is modeled, in large part, on the underwriting rules in the
mortgage context discussed above. The rule also limits the number of consecutive
payday loans that a single individual can procure within a given period of time. This
is meant to try to address the cycle of unsustainable debt that many fringe economy
borrowers fall into—being unable to repay the first loan when due and subsequently
refinancing that debt into future, larger loans (National Endowment for Financial
Education and Consumer Federation of America 2002, 2–3).
Duguit explains at some length the ability of the law to impose obligations on
others in an effort to achieve larger societal goals. He does this specifically through
his discussion of labor laws, limitations on workdays, mandatory education in pri-
mary schools, and obligatory pensions—all of which were coming into existence
during his time. He notes that these obligations are imposed (or certain activities
are prohibited) because doing so creates an advantage to society. “The life of the
individual is a social asset and it cannot be permitted to be endangered for other than
social interests.” (Duguit 1918, 82–83). In the United States, the birth and growth of
mandatory consumer financial protection represent the kind of legislative interven-
tion that Duguit asserted was required, indeed justified, in the case of certain classes
of labor that are necessary for the functioning of society but that are also poten-
tially dangerous if left unchecked. In this way, Duguit’s idea of the transformation of
liberty to come into conformity with the social function idea of property has again
expressed itself in U.S. law.
12.2.3 Through Civil Rights
Last, but certainly not least, the ideals of Duguit’s social function of property can be
seen through the lens of United States civil rights law. This is most evident in the
provisions of that certain series of federal statutes dealing with housing and public
accommodation discrimination. To understand Duguit’s theory at play in this area
of the law, one must start from the premise that, as the U.S. Supreme Court noted
in College Savings Bank v Florida Prepaid, “[t]he hallmark of a constitutionally
protected property interest is the right to exclude others.” (S Ct 1999, 667). The
Supreme Court in Kaiser Aetna stated that, indeed, it is the most universally important
and fundamentally-held element of property rights (S Ct 1979, 179).
From a historical perspective, the right to exclude included the right to refuse
to do business with parties that the owner of property deemed undesirable. This
meant, prior to 1964, that the owner of property could, for instance, refuse to serve
someone in a restaurant or offer a room at a hotel, and that the owner of real estate
could refuse to sell or lease property to the same at his sole discretion. American
courts, faced with acts of overt racial discrimination in the wake of the abolition of
slavery, declined to wade into the private property rights of innkeepers, shopkeepers,
and merchants when they refused service to black patrons. The U.S. Supreme Court
in the so-called Civil Rights Cases stated that “[i]t would be running the slavery
argument into the ground to make it apply to every act of discrimination which a
302 C. K. Odinet
person may see fit to make as to the guests he will entertain, or as to the people
he will take into his coach or cab or car, or admit to his concert or theater, or deal
with in other matters of intercourse or business.” (S Ct 1883, 24–25). Again a few
years later in the infamous case of Plessy v Ferguson, the Supreme Court stated that
“the act of a mere individual, the owner of an inn, a public conveyance or place of
amusement, refusing accommodations to colored people, cannot be justly regarded
as imposing any badge of slavery or servitude upon the applicant” (S Ct 1896, 542).
In both instances, the law focuses on the property rights—the right of the individ-
ual—to do as he pleases with his property, with any limiting principles upon such a
right being interpreted most narrowly. This is an example of what Duguit calls the
individualistic view of property rights—the old view. As Duguit notes in his lecture,
this view of property rights has “in mind only the application of wealth to individual
ends, for this is the very fulfillment, the very cornerstone, as it were, of individual
autonomy.” (Duguit 1918, 131).
The same can be said of how American law, prior to 1968, dealt with the right to
exclude in the context of housing. For instance, in the Michigan Supreme Court case
of Sipes v McGhee, the court was faced with a restrictive covenant affecting a certain
neighborhood that provided that “[t]his property shall not be used or occupied by any
person or persons except those of the Caucasian race.” The litigants challenged the
enforcement of the provision, arguing that the discriminatory effect of the act made
it void as against public policy. In response, the court held that although “[t]he public
policy of this State as to racial discrimination has been expressed in various ways,”
it is nevertheless “also the public policy of this State, as expressed in decisions of
this court too numerous to mention, to permit and enforce certain restrictions upon
the use and occupancy of real property.” To that point, “[r]estrictions of a contractual
nature are valuable property rights,” and “[a] recognized rule of property ought not
to be overturned without the very best of reasons.” Under such authority, the court
declined to invalidate the restrictive covenant—one that essentially prohibited people
of color from owning property or living in the given neighborhood (Mich Sup Ct
1947, 642).
The rationale in Sipes is emblematic of the idea by property traditionalists, to
quote Duguit, that “the only way of protecting [property use] [is] to endow the
holder with a subjective right, absolute in duration and in effect.” (Duguit 1918,
131). In other words, one may allow others to use one’s property as one see’s fit,
subject to only his personal will. “The right of property is the perfect manifestation
of the autonomy of the human will, and of the sovereignty of the individual” (Duguit
1918, 131). Whether such action results in discrimination or in the subjugation of a
class of persons who are unable to access property because of the exercise of this
discretionary—nay, arbitrary—autonomy matters not. Rather, in the traditionalists’
view, Duguit notes that the central and animating principle is that “the autonomy of
the will is the power to will juridically, and hence the right to have one’s will upheld
by society.” (Duguit 1918, 87).
But, this individualistic view of property has changed. As Duguit noted, over time
such a “narrow, arbitrary, and over-formalistic” perspective was viewed as not being
reflective of the “social reality.” (Duguit 1918, 90). As the causes of equality, dignity,
and justice under the law took root in the United States beginning in the 1950s, the
traditional view of property was soon “in absolute opposition to the social and group
tendencies of [the] time[s].” (Duguit 1918, 90). Just as Duguit stated at the time
of his lectures that “there is appearing a body of principles directly opposed to the
consequences of this individualistic system,” so too did U.S. law begin to shift away
from the old view and began to recognize that “[m]an is a social being; he can only
live in groups, he has always lived as a member of a group.” (Duguit 1918, 132, 72).
This shift came, at least in the context of public accommodations and in housing
discrimination, in the form of Title II of the Civil Rights Act of 1964 and Title VIII of
the Civil Rights Act of 1968, as well as complementary state-level civil rights statutes
(Risen 2015, 2). First, Title II of the Civil Rights Act of 1964 created a prohibition in
discrimination related to places of public accommodation when such discrimination
is based on a person’s race, color, religion, or national origin. The idea behind the
legislation was that when a property owner opens up his property to public commerce
he must necessarily accept members of the public. Places of public accommodation
include hotels, movie theaters, restaurants, stadiums, and concert halls—owners of
which had often previously denied service to black Americans. Title III of the same
Act contains the same anti-discrimination language but deals with public facilities,
meaning those that are owned or operated by state or local governments. The Civil
Rights Act of 1964, through these provisions, gave legal significance to the idea that
even private property rights could be restrained—and in a significant way—when it
came to providing equality of opportunity in the U.S.
Later in the late 1960s, Congress passed the Fair Housing Act, which was con-
tained in Title VIII of the Civil Rights Act of 1968 (Squires 2017, 28). This legislation
made it illegal to discriminate against individuals based on their race, color, religion,
sex, handicap, familial status, or national origin when it came to the sale, financing,
or leasing of housing. This legislation went even further when it came to curtailing
the rights of property owners. In the context of public accommodations, it was at
least necessary that the owner put his property into the stream of commerce—i.e.,
operating a restaurant, a hotel, a theater etc.—in order for his ability to exclude others
at will to be restrained. The Fair Housing Act, however, recognized that without a
place to live—a place to call home—even access to commercial enterprises would
not be enough to correct the years of unequal treatment for black Americans. This
legislation, subject to some exceptions, took away an owner’s ability to selectively
alienate his property, thereby forcing a more open market for who has access to
property—whether for rent, for purchase, or for financing.
The language used by courts around the time and after the passage of these two
major pieces of civil rights legislation evidences the shift in American law toward
something akin to Duguit’s social function of property. For instance, the federal
appellate court in United States v DeRosier states “[T]his Court en banc concluded
that Sections 2000a(b)(3) and (c)(3) must be read ‘with open minds attuned to the
clear and strong purpose of the Act, namely, to secure for all citizens the full enjoy-
ment of facilities described in the Act which are open to the general public. That
Title II of the Civil Rights Act is to be liberally construed and broadly read we find
to be well established.’” (5th Cir 1973, 751).
304 C. K. Odinet
In a different case where the issue was a state law public accommodations statutes,
the U.S. Supreme Court in Bell v State of Maryland declared that “[a]s the history of
the common law and, indeed, of our own times graphically illustrates, the interests
of proprietors of places of public accommodation have always been adapted to the
citizen’s felt need for public accommodations, a need which is basic and deep-
rooted.” And further, “[t]his history and the purposes of the Fourteenth Amendment
compel the conclusion that the right to be served in places of public accommodation
regardless of color cannot constitutionally be subordinated to the proprietor’s interest
in discriminatorily refusing service.” (S Ct 1964, 314–15).
In the housing context, the U.S. Supreme Court in the 1968 case of Jones v Alfred
H. Mayer Co. was faced with the question of whether the Thirteenth Amendment to
the U.S. Constitution—which abolished slavery—authorized Congress to legislate in
ways that would regulate private contracts—such as in the refusal to sell real property
to black persons. This was aside from the dictates of the Fair Housing Act itself.
The Supreme Court, in addressing the question of constitutionality, posited; “[d]oes
the authority of Congress to enforce the Thirteenth Amendment ‘by appropriate
legislation’ include the power to eliminate all racial barriers to the acquisition of
real and personal property? We think the answer to that question is plainly yes.” In
thinking about Duguit’s notion of solidarity and the fact that man lives in society,
the Court noted that “Negro citizens, North and South, who saw in the Thirteenth
Amendment a promise of freedom—freedom to ‘go and come at pleasure’ and to ‘buy
and sell when they please’—would be left with ‘a mere paper guarantee’ if Congress
were powerless to assure that a dollar in the hands of a Negro will purchase the same
thing as a dollar in the hands of a white man.” Furthermore, the justices stated that,
“[a]t the very least, the freedom that Congress is empowered to secure under the
Thirteenth Amendment includes the freedom to buy whatever a white man can buy,
the right to live wherever a white man can live.” (S Ct 1968, 27).
This change in rhetoric again signifies the change in American law as the tradi-
tionalist, autonomy-driven policy as to property yields to Duguit’s ideal of solidarity
and the socialization of property. Segregated housing practices—those that sought
to concentrate black residents in certain pockets of a larger community—have had
profoundly negative consequences in the United States. These practices, such as
denying mortgage loans to black borrowers or refusing to sell to people of color,
represent individual autonomy over property at its worst. The shift away from this
in the housing context was well-recognized in the U.S. Supreme Court’s most recent
high-profile housing case of Texas Department of Housing and Community Affairs v
Inclusive Communities. In that case, where the Supreme Court was asked to address
a theory of liability under the Fair Housing Act, the Court specifically recognized
the harms caused by the individual-centered property laws of the past. The Court
encouraged housing authorities to work toward the “revitalization of communities
that have long suffered the harsh consequences of segregated housing patterns.” In
conclusion, “[m]uch progress remains to be made in our Nation’s continuing strug-
gle against racial isolation” but “[t]he Court acknowledges the Fair Housing Act’s
continuing role in moving the Nation toward a more integrated society.” (S Ct 2015,
2525).
12.3 Conclusion
Louis XIV’s system that brought an end to civil war in France and economic stability
and progress to his country eventually fell apart. Profligate spending on the court
and a penchant for expensive vanity wars undermined whatever good was done by
creating the hyper-organized and duty-driven system at Versailles. In this way, the
social function made real in 17th century France was flawed and eventually resulted
in a failed project. However, that is not because Duguit’s idea is doomed to failure,
but rather that it is an organic ideal—one that influences and shapes but is constantly
rising and falling and bending as history and circumstances require.
To that end, Duguit’s theory of the social function of property is not a fait accompli
in American law either. Like in France, it is not a transformation that comes seam-
lessly. Indeed, the merging of an idea of social solidarity, of the collective, and of
pluralism comes in fits and starts. It stumbles and falls and rises and prevails and then
falls again many times over. It is an on-going effort—always defining and redefining
the contours of property rights and the accompanying expectations of society with
respect to them.
Duguit states boldly that “[i]n modern life, where a deep and well-defined con-
sciousness of social interdependence has become dominant, liberty has been trans-
formed into a duty of the individual to employ his physical, intellectual, and moral
forces to enrich this interdependence.” (Duguit 1918, 133). That notion of social
interdependence is being challenged at present in the United States. Since the 2016
election of Donald Trump, studies show that the political divide between the coun-
try’s two major political parties is immense (Pew Research Center 2017). Issues such
as aid to the poor, racial equality, and immigration all remain deeply contentious;
this is important because political solidarity has a strong influence on how the law is
shaped. Thus, in periods of national unity where a sense of togetherness and cohe-
sion pervades, the law will evolve to meet this ethos of unity and common welfare.
Conversely, tribal politics can breed a return to a more individual-centered approach
to property rights and the allocation of such rights.
Aside from political forces, economic forces can also have a profound effect
on the law of property. To that point, although deeply divided politics can prevent
property rights from achieving the ideals of social solidarity, the opposite may be true
with respect to economic division. Since 1980, income inequality has risen rapidly
throughout North America (World Inequality Lab 2018). About one-fourth of all
American workers earn less than $10 per hour—which results in an overall income
well below the federal poverty line (Amadeo 2018). Moreover, in the year 2012 the
top 10% of income earners in the U.S. held about half of all income in the country,
and the top 1% held 20%—resulting in a high concentration of wealth in the hands of
a small few (Saez 2013, 7–8). Since the Great Recession in the period between 2009
and 2012—when overall household income declined a dramatic 17.4%—the bottom
99% of the American population saw an anemic 0.4% growth in income (Saez 2013,
i).
306 C. K. Odinet
In light of this immense wealth gap, there has grown a national conversation
about income inequality—which, in essence, is a discussion about the allocation
of property rights. How property—or more specifically capital and access to it—
is distributed in society is a significant element, as noted above, of Duguit’s social
function manifestation in American law. During the presidential campaigning in 2015
and 2016, potential Democratic candidate Bernie Sanders asserted that “[w]here
we’ve got to move is not growth for the sake of growth, but we’ve got to move to
a society that provides a high quality of life for all of our people.” (Egan 2015).
Democratic candidate Hillary Clinton stated that “[t]he middle class needs more
growth and more fairness … [g]rowth and fairness go together. For lasting prosperity,
you can’t have one without the other.” Republican presidential hopeful Ted Cruz also
decried that “the top 1% earn a higher share of our national income than any year
since 1928.” (Demaria 2016). This rhetoric suggests, at least at some level, a mutual
recognition that the welfare of all is deeply rooted in the welfare of any one.
But, that being said, a number of other developments suggest that Duguit’s social
function theory may be on the wane at present in the U.S. Legislative and legal
battles continue to be waged in the United States regarding the exclusion of Muslim
immigrants (Liptak 2017), the rights of wedding cake bakers to deny services to
gay couples (Barnes and Marimow 2017), and the proper structuring of our federal
tax system to achieve the greatest level of economic prosperity (Cassidy 2017)—
among others. This might suggest that American law is on the verge of returning to
the traditionalist view—a view where “[p]roperty is the right of enjoying an object
in the most absolute manner.” (Duguit 1918, 71). The extent of this remains to be
seen. But, as Duguit so aptly states, “property grew up in the law to answer an
economic need, as indeed is true of all law.” (Duguit 1918, 129). The story of the
United States—a patchwork quilt and melting pot of races, classes, ethnicities, and
backgrounds—churns and swells with the progress of time, all the while remaining
one nation bound together in the solidarity of a common vision that “out of many,
one.” (McDonald 1965, 51). As long as this motto rings true, Duguit’s work—his
vision of property law as having a social function—will have a lasting place in
American law.
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Chapter 13
Duguit Appropriated: Trusts
and Collective Ownership in Québec
Gaële Gidrol-Mistral and Alexandra Popovici
Abstract In Quebec, since 1994 and the new Civil Code of Québec, the legislator
has entrenched a new conception of property that resonates with Duguit’s aspira-
tions. Indeed, not only did he consecrate ownership of property, therefore moving
away from an era of ownership of corporeal things to ownership of assets, but he
also redefined property as having two means of being: either it belongs to a person,
and therefore continues to embrace the subjectivist vision of property and private
law, or it is appropriated to a purpose, therefore creating the possibility of an objec-
tive foundation of rights, echoing Duguit’s purpose theory of affected-ownership.
Two institutions are at the heart of this small revolution and are the focus of this
paper: the trust, now understood as a patrimony by appropriation (in French un pat-
rimoine d’affectation), which is a purpose trust that knows no owner; and undivided
co-ownership of property appropriated to a lasting purpose, which, contrary to the
classical theory, might last undeterminably. Both redefine the place of subjective
rights and self-interest in private law; both put to the forefront the social function of
property and actualize the objectivist theory of Léon Duguit.
Keywords Civil law · Social ownership · Trusts · Co-ownership · Pierre Lepaulle
G. Gidrol-Mistral
Département des sciences juridiques, Faculté de science politique et de droit, Université du
Québec à Montréal, Case postale 8888, succursale Centre-ville, Montreal, QC H3C 3P8, Canada
e-mail: gidrol-mistral.gael@uqam.ca
A. Popovici (B)
Faculté de droit, Université de Sherbrooke, 2500 boul. Université, Bureau A9-233 (Pavillon
Albert-Leblanc), Sherbrooke, Québec J1K 2R1, Canada
e-mail: alexandra.popovici@USherbrooke.ca

312 G. Gidrol-Mistral and A. Popovici
13.1 Introduction
According to Duguit, the transition from a subjectivist to an objectivist theory of law

was an inevitable characteristic of the evolution of law in the 20th century (Duguit
1927, 24). If Duguit’s vision of law, focused on interdependence and solidarity rather
than autonomy and self-interest, has not become the norm in the 21st century, its
influence in the common law and the civil law traditions is today undeniable. In fact,
it seems that his realist theory has found many unsettling echoes both in private law
theory and in positive law. This text is an illustration of his echo in Quebec’s private
law.
Since 1994 and the new Civil Code of Québec (CCQ), the legislator has entrenched
a renewed conception of property law that strangely resonates with Duguit’s aspi-
rations. Indeed, he redefined property as having two ways of being (CCQ, Article
915): either it belongs to a person, and therefore continues to embrace the sub-
jectivist/individualistic vision of ownership and private law, or it is appropriated
to a purpose, creating the possibility of an objective foundation of rights, echoing
Duguit’s purpose theory of affected ownership, of ownership for a social function
(Duguit 1912, 171).1
Two institutions are at the heart of this small revolution and will be the focus of
our text: the trust (la fiducie), understood as an affected patrimony (un patrimoine
d’affectation), which entails the possibility of rights without holders; and undivided
co-ownership of property affected to a lasting purpose (la copropriété d’un bien
affectée à un but durable), which, contrary to the classical theory of co-ownership,
might last indefinitely. Both redefine the place of subjective rights and self-interest in
private law; both put to the forefront the social function of property law and actualize
the objectivist theory of Léon Duguit where duties always trump absolute rights and
affectation takes over appropriation.
Our text will unfold as follows: firstly, a small caveat on the legacy of Duguit.
Here his work will be once again2 presented, but this time in the context of its
influence in Quebec private law and the problem of appropriating the ideas of a French
constitutional thinker in a foreign jurisdiction; secondly, we will turn our minds to
Quebec’s positive law and try to see how Duguit’s ideas were in fact put into law
and the consequences that this entails. The trust and “lasting co-ownership” will be
examined. As we will see, these institutions question the absolute and individualistic
nature of civilian ownership that Duguit was so strongly against and bring to the
forefront the idea of affectation as a new social means of holding property, displacing
ownership and subjective rights from core notions organizing the whole of private
1 We will be referring to Duguit original publications in French. Because we will be using English
civilian terminology as found in the Civil Code of Québec, the terms we will be using might
not always correspond to the ones found in the rest of this volume. For example, the expression
“propriété affectation” used by Duguit in his original French (Duguit 1912) text was translated
as “property-function” in this volume (p. 54). For reason readers will understand, we prefer the
expression: “affected ownership”.
2 On the idea of writing “once again” about a topic and its place in legal scholarship, see Popovici
2014.
13 Duguit Appropriated: Trusts and Collective Ownership in Québec 313
law to mere juridical techniques. To conclude, we will assess the value and the scope
of these new ways of holding property and the impact of Duguit’s vision in private
law today.
13.2 Duguit Now3
The immediacy of Léon Duguit’s work needs first to be put in context. Duguit was a
theorist of his time. Indeed, one of his motivations was to try to renovate legal theory
(Chazal 2010) so that it would resonate more clearly with the changes in society the
world was witnessing at the beginning of the twentieth century. Convinced that the
law and its scholarship were not in tune with these changes, Duguit’s whole endeavour
was to try to elaborate a new global understanding of law engrained in this new reality.
It is not by coincidence that many of his works bear the title “the transformations
of” public, private constitutional, law (Duguit 1911, 1912, 1913): at the turn of
the century, the world at large was in the midst of a profound transformation—a
transformation that unfortunately the First World War concretized (Duguit 1927, vii
et seq, xv et seq).
Duguit was an eyewitness of these changes, and this gave him the foundations
upon which to build his new theory. Indeed, Duguit was profoundly realist and
greatly influenced by contemporaneous sociological studies (Pinon 2011; Espagno
2013). As such, he believed that law was only what could be observed and not an
abstract construction. Consequently, after being trained as a private lawyer, like all his
colleagues at the time,4 Duguit was shocked when he turned his attention to the study
of the State5 and realized that most of his peers understood the State as a legal person
having subjective rights.6 This meant that the State was conceptualized like any other
private actor as imposing its will (its sovereignty) on others and more importantly
acting for its own interest.7 But for Duguit, this fiction could not stand. In reality,
the State was not a legal actor like any others. The State was a social organization
3 This title is a reference to Kasirer 2003 where the importance of translating and studying some
“monumental works of French law” is underlined.
4 Duguit was educated in private law (Melleray 2011, 82) and both his thesis were on Roman law
(Bonnard 1929, 47).

5 It is only when constitutional law was introduced by decree as an obligatory course in the legal
national cursus in 1889, that he turned his attention specifically to that part of the law (Bonnard
1929, 8).
6 Duguit (1901, 3): “Sauf quelques rares exceptions, toutes les théories modernes de l’État et du
droit public reposent sur la notion de l’État-personne”.

7 Duguit defines subjective rights as “le pouvoir de volonté de s’imposer comme telle à d’autres
volontés”, that is “The power of the will to impose itself on the will of others” (Duguit 1927, 3).
In Québec, “subjective rights” are defined as follow: “Legal prerogative that the holder exercises
in his or her own interest” in Paul-André Crépeau Center for Private and Comparative Law, Private
Law Dictionaries Online. McGill, sub verbo: “right”. https://nimbus.mcgill.ca/pld-ddp/dictionary/
search. Accessed 28 March 2018.
implying many different actors. Their prerogatives could not be reduced to subjective
rights, as they were inherently limited by their unique purpose: the social interest.
This limit on the legal prerogatives of the State, and what it entailed for Duguit—
the complete negation of subjective rights—, became the core of his work. In fact, it
became the basis of his whole social realist theory of law: all legal prerogatives, public
and private, were limited by a purpose, and that purpose was society itself. Hence, for
Duguit, there was no such thing as subjective rights8 : agents, public or private, did
have legal prerogatives, but these prerogatives were paramount to the function they
occupied in a legal situation. Prerogatives were always limited, resembling more a
duty than a right. Consequently, for Duguit, there were no sujets de droits, that is
“right holders,” often translated as “legal subjects”, but only sujets de droit, that is
“subjects of law,” subjects of what he called the “objective law,” le droit objectif.9
Duguit’s objective theory of law has had quite a few echoes albeit mostly in the
territory of public and administrative law. Indeed, in France, where his work has
been recently republished (Duguit 1913/1999, 1920/1999, 1926/2000, 1921/2002),
Duguit was (Laborde-Lacoste 1959) and still is an important administrative law figure
and his work on public service is still quite topical (Milacic 1998; Melleray 2011;
Hakim 2011; Espagno 2013; Blanquer and Milet 2015). In English legal literature, it
is his work on the State that has found more resonance (Duguit 1970), even if quite
early on, we could find his work on property in English (Duguit 1923) and his social
realist take on law more generally was noted (Pound 1959; see also Harlow 2011).
In any case, as this book demonstrates, his thinking in common law circles is still
quite alive today (see also Mirow 2010). Yet some of the most important aspects of
his legal theory might have gotten lost in transit: in transit from the realm of public
to private law, and in transit from the French to the English language and from civil
law to common law.
Indeed, because most of Duguit’s writings touch administrative and constitu-
tional law, rarely is he invoked in French private law scholarship.10 In fact, his
work is paradigmatic of the moment of emancipation of public law from private
law (Papaefthymiou 1997; Blanquer and Milet 2015) and of the important distinc-
tion between the two realms that still exists in the civil law today. Yet, Duguit had
a “monist” vision of law11 : acts in public and private law were, he preached, to
be understood according to the same principles and purposes—social solidarity and
interdependence—, and through the same theoretical prism—sociological positivism
8 “Iln’y a pas de droit subjectif” (Duguit 1927, 221).

9 What Duguit understood as ‘droit objectif’ does not correspond to the classic understanding of
‘droit objectif’, (Melleray 2009, 230).
10 As a good example, Marie-France Belleau in her article on the critical turn of French civilian
scholarship on the turn of the 20th century clearly describes Duguit a public scholar, contrary to
Demogue or Geny (Belleau 1999, 511 n 5).
11 This is the word of Melleray (2009, 251). But this fact has been underlined by many: “Duguit
does not established a chinese wall between public and private law.” Our translation of “Duguit
n’établit pas de muraille entre le droit public et le droit privé” (Morin 1932, 153).
(Melleray 2009; Pound 1959, 184) or as Gurvicht called it “sensualist objectivism”.12

As such, the omnipresence of subjective rights in all areas of the law was to be con-
demned. Understood as a metaphysical construct that did not reflect reality, subjective
rights were not only condemned, they were literally banished from the law.
Ownership, as the archetype of subjective rights (Zenati 1981), was therefore
the turning point of his realist theory. Even in his treatise on constitutional law, we
can find his whole theory of private law defined (Duguit 1927). In fact, when he
gave his lectures in Argentina on the general transformation of private law since the
Napoleonic Code (Duguit 1912), he was just applying his general theory of law to
the sphere of law that was the most metaphysical, dogmatic and subjectivist: private
law. Hence if his work on private law is not as colossal and as influential as that
on public law, it is the most radical and the most accomplished,13 and is merely the
natural continuation of his work on the State.14 In fact, one does not go without the
other. Indeed, if subjective rights were going to be questioned in public law in order
to limit the sovereignty of the State in the name of social welfare, then private law
altogether had to be questioned, subjective rights being its cornerstone and the reason
that individualism was so embedded in its foundations. Accordingly, his lectures in
Argentina are the application of his realist theory to one province of the law: private
relations, freedom in juridical acts and legal autonomy.15
The last lecture, the most influential and the one that is at the heart of this book, is
the peak of his deconstruction of civilian private law16 which consisted in elaborating
an understanding of private relations bereft of self-interest and more dramatically
bereft of rights altogether. In that lecture, not only is ownership negated and trans-
formed into a duty, but owners disappear to give space to affectation (Duguit 1912,
171), a new objective way to hold property in tune with Duguit’s socialist values17
and design.
This radical negation of rights was in a way what caused Duguit to receive little
attention in private law scholarship. In fact, if Duguit left a legacy in civilian private
12 Indeed, Gurvitch has a whole chapter entitled: “L’idée de droit social et l’objectivisme sensualiste
de Léon Duguit” in his book on the idea of social law (Gurvitch 1932, 595).
13 His contemporary, Francois Gény, thought so (Gény 1922, 781).
14 Basically, Duguit spent all his life trying to redefine ownership and sovereignty (Mestre 1932).
15 Duguit’s six lectures in Buenos Aires were on the following topics: (1) Subjective Rights and
the Social Function; (2) The New Conception of Liberty; (3) The Autonomy of the Will; (4) The
Juridical Act; (5) The Contract and Responsibility; and (6) The Social Function of Ownership. For
a good description of the lectures see Mirow (2010, 203–207).
16 Yet, if Duguit destroyed the most fundamental notions of private law—subjective rights, legal
subject, legal acts and relations—as Geny rightly underscored, he also tried to reconstruct them by
giving a new ground to private relations thought the notion of legal situations (Geny 1922). The
idea of legal situations in civil law was later used by French subjective rights theorists like Paul
Roubier (Roubier 1963).
17 On the place of “values” in the work of Duguit, see Bonnard (1932).
law, it is, that in reaction to his work, the importance and imperialism of subjective
rights in the civilian legal architecture were strongly reaffirmed.18
Yet, Duguit’s instincts were not all without ground: not all legal relations are
about self-interest. Like public servants, private agents do, in certain circumstances,
act for others. In fact, according to Duguit, even when they act for themselves, the
law imposes limits on their acts for the good of the others. Ownership—if it has to
be—is never absolute.
Theorists in the common law know this very well. The absolute nature of civilian
ownership finds no echo in the world of multiple timed tenures (Pierre 1997). Better
yet, there is no such thing as subjective right in the common law (Samuel 1987;
Dedek 2010). Comparatists say it better than we could: “the notion of subjective
rights has never become completely naturalized [at common law] despite all the
efforts of theoretical jurists such as Austin; wrongs call for remedies; everything that
stands opposite to a liability in a balance sheet is an asset; everything that can be
transferred is a thing. What need is there to talk of rights?” (Lawson 1966, 149). And
so, maybe this is why Duguit’s concept of ownership as a social duty, or of “property
as a social function” finds such an important echo today in the common law world.
Duguit was not just a realist, he was a common lawyer at heart.
This suggestion will not be demonstrated here. Yet, it is not a coincidence that
Quebec—a mixed common law and civil law jurisdiction—became the home of
some of the ideas of this great thinker. Lost in transit, Quebec was a perfect terre
d’accueil. Two elements make Quebec inviting: the influence of the common law
on its bilingual civilian private law and the newness of its Civil Code. Indeed, as we
will see, it is through a new revitalized notion of the trust—an English idea if there is
one, and one, in fact, that calls for ownership as a function, an office—that Duguit’s
idea of affectation was introduced more generally in its private law.
But before, we get there, a last note on the problems of transit and what we might
lose in translation when talking of Duguit in English, but also when talking about
Quebec civil law to a common law audience.
Quebec civil law is bilingual. Its English civilian vocabulary is sophisticated and
often quite singular. Many words in English Quebec civil law don’t have the same
meaning as in the common law (Kasirer 1998). And because of the place of the civil
code in its general architecture, some words bear quite restricted meanings (Devinat
2005). Hence, the word “property” in Quebec civil law means the object of a right, not
the right itself. Ownership and property are not synonymous. In fact, ownership in the
CCQ is defined as a “the right to use, enjoy and dispose of property fully and freely
[note: not absolutely!], subject to the limits and conditions for doing so determined
by law” (CCQ, Article 947). Ownership is therefore the subjective right, property the
object of that right. Using this vocabulary, Duguit’s negation of subjective rights in
private law engenders a negation of ownership, not property and in the same way, it is
ownership, not property, that becomes a social function. Of course, the line between
18 Notwithstanding all the critiques subjective rights have undergone over the years, the notion
resisted. On their “resistance” see Popovici (2019, Chap. 2), Ghestin et al. (1994, 131), Gény (1922,
829).
ownership and property is, even in Quebec law, not always absolute (Cantin et al.
2006). Yet, it is important to underscore, because the expression “the social function
of property” could denote that the source of the duty comes from the object upon
which one has a right and not from the nature of the right itself. Yet, Duguit’s vision
of law is about the negation of subjective rights, and not the imposition of duties
emanating from the nature of things or assets.
As we will see, if the Quebec legislator did not go as far as banning subjective
rights and therefore ownership from its private law, it did embrace an objectivist view
of the law, one where affectation and rights without holders have taken root, and one
where Duguit’s objectivist positivism can be said to be alive today.
13.3 Affectation Now
Duguit was aware that his work on private law was not taken seriously. Indeed, in
France, his negation of subjective rights was criticized by many important authors, all
basically saying that imagining private law without subjective rights was pure non-
sense. In response, Duguit tried to show that the transformation from the subjectivist
to the objectivist theory he had been exploring since the turn of the century (Duguit
1901) was actually shared by many scholars, even by theorists that disagreed with his
vision. Hence, in the third edition of his constitutional treatise (Duguit 1927), to give
support to his realist theory and answer his opponents, Duguit traced in detail what he
called “the swansong of legal subjectivism” (Duguit 1927, 23) and demonstrated that
his new vision of the legal world, one that is no longer subjectivist and dogmatic but
objectivist and realist, was the norm of his time. To do this, Duguit choose three of his
contemporaries—Hauriou, Gény and Kelsen (Duguit 1927, 25 et seq) and explained
how their own theories of law resembled his objectivist enterprise19 : Hauriou, he
explained, did it through the notion of the institution; Gény, with his technical study
of reality, distinguished the given and the constructed and put subjective rights in the
latter; and Kelsen rejected the idea of legal persons and subjective rights altogether,
the only thing holding legal relations together being objective norms that situated
persons in the realm of the law. All three offered a renovated vision of law. All three
questioned the place of subjective rights in the legal order, not always putting them
19 “If I reproduced the conclusions of these authors, it is to show that my negation of legal subjects
isn’t as paradoxical as it may seem, because in one form or another, this negation is in reality
contained in the conclusions of the most knowledgeable contemporary legal scholars. Yet many
don’t dare to say it frankly. … they are so impregnated by a long tradition of legal subjectivism
which they can’t let go.” Our translation of “ Si j’ai reproduit les conclusions de ces divers auteurs,
c’est pour montrer que ma négation du sujet de droit n’est pas si paradoxale qu’on pourrait le
croire, parce que sous une forme ou sous une autre, cette négation est véritablement contenue dans
les conclusions des plus savants juristes contemporains. Seulement, beaucoup n’osent pas le dire
franchement. … ils sont tellement imprégnés, par une longue tradition, de subjectivisme juridique
qu’ils ne peuvent s’en affranchir une fois pour toutes.” (Duguit 1927, 531–532).
aside completely, but, to say the least, showing that they were a construction and that
they were not indispensable.
It is undeniable that Duguit was not alone in thinking that subjective rights were
a mere metaphysical construct and that maybe they were not the right tool for every
legal situation. With his analysis of the work of Hariou, Gény and Kelsen and others,
he did manage to show that his questioning of subjective rights was shared by many
and that the imperialism of subjective rights needed to be tamed as subjective rights
deformed reality into a dogmatic and individualistic world. Reality, Duguit kept on
reminding us, was way more complex. Facts showed us that people lived together and
were interdependent. That was what law was supposed to promote, not self-interest
and individualism.20
We already saw that Duguit pushed this idea of law even further. For him, each
individual had a social function and his prerogatives were limited by that function,
limited by his legal situation, better yet, affected to a purpose, the ultimate purpose
being social interest and interdependence. This implied not just the questioning of
subjective rights, but their complete disappearance from the law. But with that, the
idea of legal subject also disappeared and ultimately the idea, so crucial to private
law, of vinculum juris:
If an act has a legal value, it is because the will that produced it is determined by a legitimate
purpose. The old notion of legal nexus, of vinculum juris disappears; legal relationships
vanish. Human fact, facts induced by an individual and willful act, that is all that matters.
That fact is a legal fact only if it is faithful to the legal rule, in which case, the holder of the
material prerogative will employ his prerogative legally to realize his willful act. There is
accordingly a legal situation. A malleable and fruitful concept that will marvelously meet
the needs of modern society. A protective concept, because if it can’t justify the origin of
the State, it can limit its powers and actions, and mark it obligations. A practical concept,
because it sets aside the long and vain controversies on legal personality.21
Hence for Duguit, there are no legal subjects (sujet de droits) but only legal facts
and subjects of the law (Duguit 1901, 18). Their situation is always limited by the law
20 “As long as Robinson is alone on his island, he does not have any rights. He acquires them
only when he encounters other human beings… Thus the whole individualist doctrine collapses.
Objective law, the social norm, can only founded on pretended subjective rights, which if they exist,
can only spring from social life and its norm.” Our translation of “Robinson dans son île, tant qu’il
est seul, n’a pas de droits; il n’en acquiert que lorsqu’il prend contact avec des êtres humains…
Ainsi, tout la doctrine individualiste s’effondre. On ne peut fonder le droit objectif, la norme sociale,
sur de prétendus droits subjectifs, qui, s’ils existent, ne peuvent naître que de la vie sociale et de la
norme qui s’y applique” (Duguit 1927, 212).
21 Our translation of “Si un acte a une valeur juridique, c’est parce que la volonté qui l’a produit est
déterminée par un but conforme à la règle de droit. La vieille notion du lien de droit, du vinculum
juris, disparait; le rapport de droit s’évanouit. Un fait humain, c’est-à-dire un fait provoqué par un
acte de volonté individuelle, voilà tout ce qu’il y a. Ce fait est un fait de droit s’il est conforme à la
règle de droit, et dans ce cas, le détenteur d’une force matérielle emploiera légitimement sa force
à la réalisation de cet acte de volonté. On dit alors qu’il y a situation de droit. Conception souple
et féconde qui s’adapte merveilleusement, nous espérons le montrer, aux besoins des sociétés
modernes. Conceptions protectrices, car si elle ne peut justifier l’origine de l’État, elle peut en
limiter les pouvoirs et l’action et en marquer les obligations. Conceptions pratiques, car elle écarte
les longues et vaines controverses sur la personnalité juridique.”(Duguit 1901, 17).
which modulated the parameters within which they can act. Legal prerogatives are not
only limited by the prerogatives of others—like in a theory of abuse of rights (Duguit
1912, 196 et suiv; Josserand 1927), they are limited by the legal situation itself. All
prerogatives are thus restricted and impose certain duties. Therefore, rights become
functions; ownership a social function. Better yet, ownership literally disappears:
“Ownership is nothing, affectation is everything, an affectation that is protected
against its owner, an affectation that is protected on its own, without legal subject,
without subjective rights”.22
Ultimately, what counted for Duguit was not the protection of legal subjects and
their rights but that a situation that merited legal protection would be protected by
what he called the objective law.23
With the disappearance of rights, holders of rights, and legal nexus, only facts,
legal facts remained. There were no more legal acts but only legal situations. All pre-
rogatives were therefore objective and limited by the legal situation and the law. They
were all limited by a purpose. Nothing was absolute. All was affected. Prerogatives
became duties, objective obligations.
Saying that law emanates from the facts and that their regulation is a posteriori is
not so revolutionary—the whole of the common law is structured on that premise—,
but to say that there is no more freedom of action, only duties24 is a different story.
Hence, in traditions where the absoluteness of ownership is still not questioned in
orthodox scholarship and in positive law,25 the influence of Duguit in private law is
not obvious. In Quebec, the premise is quite different. In fact, many of the features
of Quebec’s evolving legal system combined to make it a natural home for Duguit’s
ideas. As we underscored before, Quebec is a mixed jurisdiction, with a civilian
civil code, albeit a bilingual one, where, for example, succession law is based on
the English freedom of contract, and where the trust has always found a fertile soil
(Cantin-Cumyn 2001; Popovici 2014). More interestingly, its private law underwent
a major transformation in the 1990s when a new civil code came into force. This code
was meant to be modern, it was meant to be in tune with the changing times (Crépeau
22 Our translation of “Voilà donc une propriété qui n’est plus rien et une affectation qui est tout, une
affectation qui est protégée contre le propriétaire lui-même; une affectation qui est énergiquement
protégée comme telle, sans qu’on puisse trouver trace ni d’un sujet de droit ni d’un droit subjectif”
(Duguit 1912, 174–175). See p. 58 of this volume.
23 “In any situation where social needs and justice require protection, that protection must be rec-
ognized and organized by objective law.” Our translation of “Toutes les fois qu’on se trouve en
présence d’une situation dont les besoins sociaux et la justice demandent une protection, il faut que
cette protection soit reconnue et organisée par le droit objectif” (Duguit 1927, 452).
24 Which basically was his argument in the second lecture in his Argentinian lectures (Duguit 1912,
23).
25 The fundamental article on ownership in the French civil code still promotes the absoluteness
of ownership: “La propriété est le droit de jouir et disposer des choses de la manière la plus
absolue, pourvu qu’on n’en fasse pas un usage prohibé par les lois ou par les règlements” (CCiv,
Article 544). Légifrance offers this translation: “Ownership is the right to enjoy and dispose of
things in the most absolute manner, provided they are not used in a way prohibited by statutes or
regulations” (Légifrance, Légifrance Translations. https://www.legifrance.gouv.fr/Traductions/en-
English/Legifrance-translations. Accessed 26 March 2018).
1979). For one thing, as we have seen, ownership was not defined as being absolute
in this new code (CCQ, Article 947), which already is quite a departure from the
traditional post-revolutionary idea of absolute ownership,26 but the changes go even
further. Indeed, property law was the locus of many major modifications. With the
new code, the core notion of property itself was modernized: First, property is now
understood as a mere right that can be evaluated in pecuniary terms. This modifies
the object of ownership: ownership is not the right to use, enjoy and dispose of a
thing (Civil Code (Cciv), Article 544; Civil Code of Lower Canada (CCLC), Article
406) but as the right to use, enjoy and dispose of property (CCQ, Article 947).
Here property is understood as an abstract economic value (Gidrol-Mistral 2016a).
“Things” become “wealth”,27 blurring the lines between real and personal rights
(Ginossar 1960) so dear to the civilian architecture and embracing an understanding
of property that resonates with Duguit’s realist vision of capitalist property (Duguit
1912, 149).
But the reformation of property goes even further: property in Quebec can now
be the object of two types of appropriation: appropriation for the self (ownership) or
appropriation for a purpose (affectation).
Article 915 is at the heart of this important (duguitian) revolution:
Article 915 Article 915

Les biens appartiennent aux personnes ou à Property belongs to persons or to the State or,
l’État, ou font, en certains cas, l’objet d’une in certain cases, is appropriated to a purpose
affectation
But what does it mean for property to be appropriated to a purpose, or affected?

And where does this idea come from? Are we really talking about affected-ownership
à la Duguit, that is “an affectation that is protected on its own”(Duguit 1912, 175)?
Did the Civil code of Québec embrace an objectivist understanding of law where
rights, legal subjects and legal nexus are no longer paramount?
The short answer: yes. And all of this because of a common law idea, the trust,
and its incongruity with the civil law architecture. Let us explain.
The trust, as an English institution, always had trouble finding a place in civilian
legal order (Motulsky 1948). This is mainly because the trustee, in the common law, is
a selfless owner who has obligations. Yet, in civil law, ownership being absolute and
individualistic, the trustee could not be conceived as bearing any obligations (Cantin
Cumyn 1984). What’s more, ownership, being the archetypal subjective right, could
not be conceived as being selfless. Still, in Quebec, for historical and geographical
reasons, the trust has always been part of the jus commune. Evidently the acclimation
26 Duguit’s own description of the absoluteness of property is quite evocative (Duguit 1912,
152–155).
27 Recalling Duguit’s own understanding of property: “Ownership is not the subjective right of the
owners, it is the social function of the holder of wealth.” “La propriété n’est plus le droit subjectif
du propriétaire; elle est la fonction sociale du détenteur de richesse.” (Duguit 1912, 158) See p. 44
of this volume.
was not obvious and under the Civil Code of Lower Canada of 1866, the trust was at
the heart of many controversies (Normand and Gosselin 1990). When the renovation
of the institution was on the table during the reform of the code, the trust underwent
a complete makeover and it is through the idea of affectation (CCQ, Article 1261)
that this transformation took place. Strangely enough, this idea, unique to Quebec
positive law (Popovici 2016), was borrowed from a contemporary of Duguit, Pierre
Lepaulle, a scholar who embraced fully Duguit’s objectivist legal theory.
Lepaulle was a French legal specialist who studied the common law trust and
wanted to bring its ingenuity to the civil law world (Popovici and Smith 2015). But
more importantly for us, Lepaulle was a private law scholar who strongly believed
that the objectivist turn so dear to Duguit had already happened in France (Popovici
and Smith 2015, 31 et seq). In fact, Lepaulle, who studied trust law at Harvard28
and was very close to the thinking of Roscoe Pound (Lepaulle 1962), thought that
the sociological turn so emblematic of both Duguit’s and Pound’s thinking, was
inevitable.29 Hence for Lepaulle it was easy to affirm that “rights ha(d) two ways of
being: either they belong(ed) to a legal person, or they (were) affected, so that legal
person and affectation are like the two foci of the ellipse that encloses the whole
juridical plan”(Lepaulle, translated by Popovici and Smith 2015, 41). Article 915
CCQ strangely resonates; but Duguit sings.
In fact, Duguit infuses Lepaulle’s work: not only is “affectation” at the core of
his understanding of what law is and ought to be, but Lepaulle in trying to define
the trust, questions “metaphysical notions” like the autonomy of the will and the
legal subject and vouches for a “legal reality” based on “human relations”, not pure
constructs. “The problem at the core of this doctrine comes from its very premise.
The concept of a legal subject that is the cornerstone of this doctrine is no more
than a juridical technique, and taking it literally is a mistake” (Lepaulle, translated
by Popovici and Smith 2015, 32–33). More importantly, rights for Lepaulle can be
“independent from legal subjects” (Lepaulle, translated by Popovici and Smith 2015,
39) and when affected, they do “not create legal relationships between persons.”
(Lepaulle, translated by Popovici and Smith 2015, 38).
Duguit’s objectivist vision of law that concludes with affected ownership, that
is ownership understood as a function rather than an absolute prerogative, is here
actually put forward as a pure fact. Lepaulle’s understanding of trust as an affected
patrimony, that is a mass of assets and liabilities being held together by a purpose
that knows no owner but only a selfless trustee, is basically an implementation of
Duguit’s doctrine. But, what is more important is that the Quebec legislator chose
this exact construction as a model for its own trust:
28 His Harvard doctorate was on the interaction of administrative law and international law: Admin-
istrative Law in Front of International Law (1922), noted in the Harvard catalogue as a typewritten
thesis. (Popovici and Smith 2015, 14).
29 Lepaulle does not mention Duguit in his major book (Lepaulle 1932), yet we can take for granted
that he knew his work, at least through the works of Pound who analyzed Duguit social legal theory
(Pound 1959, Chap. 4 The social philosophical schools, 119), and with whom he stayed in contact
after his return to France (Lepaulle 1962).

La fiducie résulte d’un acte par lequel une A trust results from an act whereby a person,
personne, le constituant, transfère de son the settlor, transfers property from his
patrimoine à un autre patrimoine qu’il patrimony to another patrimony constituted
constitute, des biens qu’il affecte à une fin by him which he appropriates to a particular
particulière et qu’un fiduciaire s’oblige, par le purpose and which a trustee undertakes, by
fait de son acceptation, à détenir et à his acceptance, to hold and administer
administrer
Le patrimoine fiduciaire, formé des biens The trust patrimony, consisting of the property
transférés en fiducie, constitue un patrimoine transferred in trust, constitutes a patrimony by
d’affectation autonome et distinct de celui du appropriation, autonomous and distinct from
constituant, du fiduciaire ou du bénéficiaire, sur that of the settlor, trustee or beneficiary and in
lequel aucun d’entre eux n’a de droit réel which none of them has any real right
As we said before, the trust is the perfect vehicle to put forward the ideas of
Duguit: a trust is a way to hold property, where the trustee, selflessly, is bound to act
for others. Even if the trustee might not always have a social function, indeed, in most
trusts the function of the trustee is private, the structure is the same: acting for others
while holding property rights. However here the structure chosen goes a bit further:
if usually in civil law, acting for others is done through representation and mandate
(Adrian Popovici 1994), the Quebec trust, understood as an affected patrimony based
on the work of Lepaulle, breaks that structure: trust is a new way to hold property
that departs completely from ownership (subjective right) or representation (legal
nexus). Its new jural technique, affectation, in tune with the common law only as it
is not based on subjective rights, demands that one holds property not for oneself
or for another, but for a purpose. The wealth is therefore held by someone who
does not profit directly from it and that basically only has objective duties to hold it
according to its purpose. With affectation, one does not act for another but acts for a
purpose. Rights, understood as an individualistic prerogative, become useless. Here
the prerogatives derive from the function the trustee bears, and are limited by the legal
situation and the affectation. In fact, what the law protects is not the prerogatives, the
rights, but is the affectation, the purpose itself. To paraphrase Duguit, the affectation
is protected against its holder, who only has duties (duties to act according to the
affectation). The affectation is thus protected on its own. There is no need for rights or
legal subjects (sujets de droits) and better yet, no such thing as a legal nexus as there
are no owners who owe each other obligations. Affectation is completely objective
and bounding. “Affectation becomes everything” (Duguit 1912, 174).
In Quebec, affectation is not everything. Affectation is the tool used to concep-
tualize the trust. Yet this vehicle redefined what property is (CCQ, Article 915) and
more importantly dethroned individual ownership and subjective rights from their
monopoly in civil law. Indeed, right from the start of the CCQ, the legislator estab-
lishes that both the subjective and the objective theories of rights are part of its law
(CCQ, Article 2). Affectation becomes thus a new tool to hold property, a tool that
puts to the forefront purposes and not individuality, a tool that creates the possibility
to hold prerogatives in a disinterested and limited manner.
Affectation is not only found in the realm of trusts. It is also found in the regime of
co-ownership. In Quebec, there are two types of co-ownership, divided co-ownership,
where the object of the right is physically divided, and undivided co-ownership, where
the object of the right is not physically divided. Both are what is called modalities
of ownership (Normand 2006), a plural form of ownership. In each situation, the
co-owners have rights and obligations as individual owners, limited, however, by
their respective situation. This limit is understood as an affront to absolute and indi-
vidualistic ownership. In the case of undivided co-ownership, this affront has always
been tempered by the idea that “no one is bound to remain in indivision” and there-
fore partition can always be demanded (CCQ, Article 1030; see also CCLC, Article
689 or CCiv, Article 816). However, in the new modern code, partition can be now
postponed and more interestingly be deemed impossible because the property has
been affected to a lasting purpose:
Article 1030 CCQ Article 1030 CCQ

Nul n’est tenu de demeurer dans l’indivision. No one is bound to remain in indivision.
Le partage peut toujours être provoqué, à Partition may be demanded at any time unless
moins qu’il n’ait été reporté par une it has been postponed by an agreement, a
convention, par une disposition testamentaire, testamentary provision or a judgment, or by
par un jugement ou par l’effet de la loi, ou qu’il operation of law, or unless it has become
n’ait été rendu impossible du fait de impossible because the property has been
l’affectation du bien à un but durable appropriated to a lasting purpose
Affectation, here limited to one that has a lasting purpose, can render partition
impossible and impose upon the co-owners a new form of co-ownership where the
purpose trumps the right, one where affectation is everything and ownership nothing,
one where the rights of the owners are subjugated to the affectation.
Indeed, as it has been demonstrated elsewhere (Gidrol-Mistral 2016b), when the
affectation is social, that is when its purpose is deemed to transcend the sum of the
individual interests of the co-owners to create a new form of autonomous collec-
tive interest (Gidrol-Mistral 2016b, 122–123), undivided co-ownership as it is still
understood, that is a modality of ownership, is transubstantiated into a new way to
hold property, where the affectation takes over the rights. Here one can imagine a
new collective way to hold property where social interest always annihilates the pre-
rogatives of its individual holders, one where co-ownership is not understood as a
sum of (often conflictual) individual rights, but as a collectivity of interests which is
not embodied in a metaphysical legal person but in a new way to hold property for
a social function.
13.4 Appropriating Duguit; Affecting Civil Law
The singularity of the new civil code of Quebec is total. The legislator in using
affectation as a way to limit, transform, transubstantiate rights into objective pre-
rogatives is quite revolutionary. Indeed, in accepting that legal prerogatives can be
affected (CCQ, Articles 2, 915) the whole premise of private law is destabilized:
persons, things and actions (Reiter 2008), or as the Code says persons, property and
relations between persons30 might still be the core of the jus commune, but they are
redefined: persons can no longer be defined as entities having subjective rights and
acting merely for themselves: they become the ones who, acting in a legal situation,
hold legal prerogatives that are limited by their situation (ownership or affectation);
things have become property, that is what can be appropriated or affected (CCQ,
Article 915); and legal relations are obsolete, as if one does not act for himself or
another, but acts for a purpose, there is no need to understand private law as rela-
tional. The self and the other are no longer important, what counts is the purpose,
the affectation.
In the work of Duguit, that affectation was actually based on social relations and
thus always the same: interdependence and solidarity. In the work of Lepaulle and
the Quebec legislator, affectation can be social (the case of lasting ownership being
an example, but we can also think about foundations and social (charitable) trusts),
but it can also be private. Yet, in this case, the structure remains unchanged. What is
at stake is the affectation, not self-interest.
In a way, by putting affectation to the forefront, Duguit was being a true publi-
cist and a true socialist: contrary to how private law functions—rights are privately
enforced by a right holder (for example an owner, a party to a contract or an injured
party) against another right holder with whom he has a relation—anyone must to be
able to enforce the duties of an affected prerogative holder. The interest to enforce
the duty and bring a legal action has to be open to anyone who has an interest in the
affectation. When the affectation is social interest, the action is thus open to anyone.
This is one major consequence of his objectivist vision of law.
Lepaulle in his understanding of trust foresaw the problem (Popovici and Smith
2015, 41). The Quebec legislator did also anticipate the issue of the difficult enforce-
ment of social trusts albeit leaving them still today unenforceable.31 What the Quebec
legislator did not foresee however is the impact of affectation on the rest of the code.
Indeed, the possibility of having affected prerogatives permits the creation of new
ways of holding property that don’t square with the traditional subjectivist way and
the individualistic architecture of the private law. If Duguit’s influence was only
found in social (charitable) trusts and lasting co-ownership, both having a social
interest aspect, it would not be a problem. Enforcement by any party interested in
the affectation would be logical. But, as affectation finds its ground in private law
(CCQ, Articles 2, 915) and more importantly in the Quebec legal imagination, its use
for private interest, already foreseen for private trusts, is now slowly expanding to
other situations like partnerships (Popovici 2013) and other purposes (Gidrol-Mistral
2016b). Yet, if this objectivist turn might seem modern (Ministère de la justice 1993),
in tune with the changing times, the consequences may include the attenuation of
30 Aslaid down in the preliminary provision of the Civil Code of Québec.

31 CCQ, Article 1287 calls for the supervision of the trustee. Yet, to this day, no body or person has
been designated by law to ensure the supervision of a social or private purpose trust.
responsibility for certain actors who, acting in the name of a private affectation, are
not accountable to anyone.
In the common law, we all know that purpose trusts are deemed unenforceable for
exactly this reason, and therefore are only viable when established for a charitable
purpose (Waters 2008). In Quebec, a blind cut and paste of Lepaulle’s doctrine of
trust, which basically understood all trusts, private and social, to be purpose trusts,
introduced Duguit’s objectivist notion of affectation without its social counterpart.
Yet this failure to introduce a social end to the new doctrine might be the missing link.
Duguit was a social positivist. His whole theory was in the name of solidarity and
interdependence. His new understanding of private law, where rights are replaced by
affected prerogatives is only viable when the affectation is society itself. Mixing the
private and the public can create fascinating new avenues for the law. Yet, letting the
law be bound by affectation is only viable when the affectation meets social ends.
Duguit as a socialist at heart knew that.
Acknowledgements We would like to thank Lionel Smith and Anne-Sophie Hulin for their acute
reading of a first draft of this text. We would also like to thank the Chambre des Notaires du Québec
for their generous support.
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Part V
of Property—Australia, Africa and Asia
Chapter 14
The Norm of Property’s Social Function:
A Chinese Perspective
Lei Chen, Andrew Michalek and Jia Wang
Abstract Duguit argued that property must evolve to mean that property rights
should have social functions. But he was decidedly ambiguous on what specifically
‘social functions’ demand. This chapter aims to investigate how the ‘social function’
of property may influence other regulations and provisions in the current Chinese
context. To this end, this chapter shall broach four topics—the constitutional property
clause, rural land reform, social capital’s role in an efficient operation of homeowners’
associations, and limitations on copyright—illustrative of how the social function of
property is applied in contemporary China.
Keywords Homeowner associations · Social capital · Rural land market · Fair

use · Stewardship · China
14.1 Introduction
Property is more than just something tangible: it is the embodiment of a human

being’s relationship with the outer world. As Singer and Beermann announced, prop-
erty is not just about an individual entitlement and exclusion, it is a system (Singer
and Beermann 1993). Individuals do not live alone and diverse institutional arrange-
ments have been developed to affect the allocation and exercise of property rights
(Ostrom 1990). This conceptual understanding of property rights seems to be a com-
mon sense in many ways. But when Duguit’s evolutionary redefinition of property
was created, it stood in ‘stark contrast’ to the classic liberal notion of property com-
monly found in the Anglo-American tradition in early 20th century. The classical
L. Chen (B)
School of Law, City University of Hong Kong, Tat Chee Avenue, Kowloon Tong, Hong Kong
e-mail: leichen@cityu.edu.hk
A. Michalek
Johns Hopkins University, Baltimore, MD, USA
J. Wang
Hong Kong Polytechnic University, Hung Hom, Hong Kong

332 L. Chen et al.
view, as noted by Lord Denning was that: ‘Every man is entitled to pull down his
house if he likes…Likewise every man is entitled to cut down his trees if he likes,
even if it leaves you without shelter from the wind or shade from the sun.’1 Perhaps,
a simpler way to term the classic view of property, is to term it ‘despotic dominion’
(Blackstone 1871, 2). In essence, the classical view of property entailed that the
property’s owner had no obligations toward the property itself or society at large.
Duguit’s response to this classical notion of property, was his argument that the
definition of property must evolve. Essentially what Duguit is advocating for is that
ownership of property must impose some level of obligation upon the owner to use
the land in a way that fulfills some level of social function.2 He concluded that:
“Property is no longer the subjective right of the owner; it is the social function of
the holder of wealth.” Duguit’s theory has begun to see renewed interest in many
societies. Most recently, a “Statement of Progressive Property” was published in the
Cornell Law Review asserting that “[w]e must look to the underlying human values
that property serves and the social relationships it shapes and reflects” (Alexander
et al. 2009).
What, specifically, does ‘social function’ demand? Duguit was decidedly ambigu-
ous on this. He never imparted any definitive definition on how to satisfy this require-
ment. Many believe one of the reasons for this was that Duguit was trying to construct
a theory that found a “middle way between absolute property rights and socialism”
(Mirow 2010). Nevertheless, we venture to argue that the ‘social function’ of prop-
erty demands that the land and/or resources upon it be used to create a positive social
impact. For instance, using farmland efficiently, maintaining premises, building to
make the most efficient use of the land, etc. Basically anything that might stand in
contrast with the classic liberal definition of property noted above. Duguit’s social
function theory of property travelled the world and had a far-reaching impact on the
property rights discourse of the time. It featured prominently in the debates and sub-
sequent drafting of civil codes in several Latin American countries. However, with
the benefit of hindsight, one can appreciate how Duguit’s theory might be perverted
so as to expropriate private land or violate an owner’s right to his land. One need only
look at the history of countries that introduced his ideas in their constitutions. Chile
under Pinochet, for example, is commonly cited to illustrate how these theories might
be used to violate an owner’s right under the guise of fulfilling a ‘social function’ or
‘social responsibility’.
Yet, one could argue that Duguit’s theory was hardly a new construct by the time it
reached China. The idea of property’s inherent social function has been deeply rooted
in China’s long history. For example, one ancient Chinese philosopher Mengzi indi-
cated that a person who owned property had a higher level of morality and behaved
in a more disciplined way than those who did not own property. From this stance,
the right to private property promotes a harmonious and ordered society. Property
1 Phippsv Pears [1965] 1 QB 76 at 83 per Lord Denning MR.

2 It
is important to note that the word propriété in French literally means both ‘property’ and
‘ownership’. Hence, it is important to recognize that when we say the ‘social function of property’,
we could also say ‘social function of ownership’.
14 The Norm of Property’s Social Function: A Chinese Perspective 333
can represent both personal freedom and obligation/restraint simultaneously. Mov-

ing from physical property to intellectual property, Confucianism bestowed a great
deal of respect upon past knowledge and believed that it should be shared without
restrictions. Authors, for example, were not encouraged to create works primarily
for financial income.
More tellingly, one may speculate that within a country like China, a transforma-
tive socialist country, the idea of property’s social function would be well-received
as the notion of social function seems to neatly dovetail the socialist ideology. Not
surprisingly, the first Chinese Civil Code, the Civil Code of Republic of China (ROC)
(1929–1931), enacted before the Chinese Communist Party came to power in 1949
had already enshrined several general principles with respect to social function. When
the ROC civil code was drafted, the prevailing view was that social harmony took
precedence over absolutist individual rights. This closely reflected the traditional
Chinese natural law philosophy that conciliation, mediation and compromise were
the preferred ways of settling a civil dispute. One can readily observe this concept
within several of the provisions in the ROC civil codes: “Liberty may not be restricted
unless it is contrary to public order or good morals.”3 And “a juristic act which is
contrary to public order or good morals is void.”4 But perhaps most telling are these
two articles: “A right cannot be exercised for the main purpose of causing injury to
another.”5 And “no retention over a movable property can be made, if the retention
is contrary to public order or good morals”.6 Such codes clearly decree that property
entails a certain level of obligations and its use should serve the public interest.
Moving from the historical to the present, we find the General Provisions of Civil
Law, which were enacted in 2017 and intended to be an integral part of the upcoming
Chinese Civil Code. Explicitly the provisions provide that any civil activity shall be
conducted by civil subjects in resource-saving and environmental-friendly manner.7
Given the phraseology and scope of the provisions one might argue that the social
function of property has taken root in contemporary Chinese legislation. In an effort
to survey the broader impact of Duguit’s theory, this chapter aims to investigate how
the ‘social function’ of property may influence other regulations and provisions in
the current Chinese context. To this end, this chapter shall broach four topics—the
constitutional property clause, rural land reform, social capital’s role in an efficient
operation of homeowners’ associations, and limitations on copyright—illustrative of
how the social function of property is applied in contemporary China.
3 Article 17(2) of the Civil Code of the Republic of China.

4 Article 72.
5 Article 148.
6 Article 930.
7 Article 9 of the General Provisions of Civil Law of PRC.
334 L. Chen et al.
14.2 The Constitutional Property Clause in China
Balancing the competing interests of rights and interests over property is one of the
most important social functions of property law in China. Land tenure as an institu-
tion embodies a bundle of interwoven public and private rights. Initially, there was
no provision for private property in the 1982 PRC Constitution. Owing to the dra-
matic changes in economic and social conditions, the PRC Constitution was amended
several times to entrench private property constitutionally. The 1999 constitutional
amendment states that “individual private and other non-public economies that exist
within the limits prescribed by law are major components of the socialist market econ-
omy.”8 In contrast, the 2004 constitutional amendment guarantees the right to hold
private property.9 This most recent amendment will lead to legal changes improving
the country’s legal framework for trading in real estate, stocks and bonds and other
forms of property. Although private property is protected by various means under
Chinese law, the constitutional amendments are important in that they acknowledge
the status of the right to private property as a fundamental freedom. This is a sym-
bolic milestone that pre-empts the enactment of further laws relating to property.10
The constitutional entrenchment of property rights gives equal protection to privately
owned, state-owned and collectively owned property (I think we need a sentence here
drawing a distinction between ‘private property rights’ and ‘land tenure rights’, this
will allow these paragraphs to transition properly).
The Chinese land tenure system is still socialist in nature. This is evidenced by
the dichotomy between landownership and land-use rights (Hu 2007). All urban land
is state-owned, and all rural land is collectively-owned. In brief, there is no private
landownership in China. But under the Chinese constitution, the highly commercial-
ized land-use right is created to separate itself from landownership.11 As a result,
while land is still publicly owned, the land-use right to such land is allocated to pri-
vate individuals and can be freely transferable for value. For rural land, the current
legal framework governing land expropriation requires that all non-agricultural use
of land must use state-owned land.12 Where the land is collectively owned in rural
areas, it must first be taken by the state and subsequently converted into state-owned
land.13 Because land is publicly owned in China, expropriation of land only involves
the summary withdrawal of land-use rights.
Before 1994, when housing privatization occurred, the expropriation of urban
housing was mainly aimed at serving the needs of urban revitalization. Expropria-
tions were largely government-oriented and benefited the public by improving poor
8 Article 11 of China’s Constitution (amended on 15 March 1999 at the 2nd session of the 9th NPC).
9 Article 13 of China’s Constitution (amended on 14 March 2004 at the 2nd session of the 10th
NPC).
10 The landmark Chinese Property Law was enacted in 2007. See Miao (2006).
11 Article 10 of PRC Constitution.
12 Land Administration Law Article 43.
13 Land Administration Law Article 44.
living conditions. However, the Urban Real Estate Management Law14 changed the
nature of expropriations with regards to urban housing. The Law created a number of
de facto monopolies that rendered the implementation of just compensation almost
impossible. Both the Urban Real Estate Management Law and the Land Administra-
tion Law require that large new construction projects be completed on state-owned
land. Since the local government is the only authority that may assign a piece of
state-owned land to developers, or take collectively owned land and convert it to
state-owned land, the local government effectively monopolizes the supply of land
available for construction (Ho 2005, 44–48). Hence, the entrepreneurial interests of
local governments are unavoidably intermingled with the public interest (Sargeson
2004, 640). Since the Urban Real Estate Management Law only allows licensed
developers with the necessary qualifications to construct infrastructure, facilities and
housing in urban areas, individuals, organizations and enterprises are unable to build
their own housing.15 Further compounding matters, the licensing system welcomed
a sizeable private capital flow into the construction market. In order for investors to
maximize profit in redevelopment, a private developer removes the residents from a
piece of land at a low price, redevelops the area and sells the real estate at a much
higher price.
Moving from urban land to rural and tenure system, the picture is even more
pessimistic. While the belief that property rights promote prosperity and safeguard
against arbitrary intrusion has long been the norm in rights discourse (North 1990;
Demsetz 1967; Barzel 1989), in China, property rights are weak and vulnerable to
the varying dictates of government policies.16 Unfortunately, many Chinese farm-
ers learned this lesson the hard way. As noted above, China employs a bifurcated
system of land use rights, differentiating between urban land and rural land. In the
past, while urban land use rights have been commercially transferable, rural land
has been collectively-owned and was effectively non-transferable. Though a village
collective could transfer rural land-use rights to individuals, such a transfer would
be subject to consent from both two-thirds of the villagers’ representatives and the
township authority.17 Furthermore, households that wish to transfer their contract-
ing management rights are required to give preference to potential transferees in
the same collective.18 Yet several low-key machinations have seen this arrangement
evolve. In 2007, the State Council (the Central Government) allowed Chengdu and
Chongqing to conduct pilot projects regarding the registration and transfer of collec-
tively owned agricultural land.19 This new pilot scheme on rural land transfer could
14 Urban Real Estate Management Law of 1994 by the Standing Committee of the National People’s
Congress of PRC.
15 Article 30 of the Urban Real Estate Management Law.
16 Lei Chen, “The evolution of the property system in China: between the socialist heritage and
liberal market”, in Fu Hualing, Gillespie J., Nicholson, P. and Partlett W., (eds). Socialist Law in
Socialist East Asia. 2018, Cambridge University Press, pp. 385–388.
17 Article 15 of Land Administration Law.
18 Article 33 of Land Administration Law.
19 National Development and Reform Commission (NDRC), The Circular approving Chongqing
and Chengdu as the Special Experimental Zones for Coordinated Rural and Urban Development
336 L. Chen et al.
be to individuals outside of the collective. Politically, these moves were significant

as they indicated that the top leadership wanted to signal the beginning of the end for
the bifurcated urban and rural land tenure systems.20 Since then, Chengdu has been
implementing and fine-tuning many concrete policies to establish a legal and institu-
tional framework for markets in rural property rights (Xiaoming 2012). Specifically,
village authorities can register a person-based land use right at the village level for the
homestead right (residential construction right), and there is now a household-based
registration for the farmland use right (Chengdu Municipality 2008).
Permitting transactions in rural land-use rights would be a major milestone in
the economic liberalization of China.21 Currently, demand for land in rural China
is satisfied by state-based models of expropriation and through converting the legal
status of rural land, rather than through impersonal exchanges of property rights.
Not surprisingly, the current model is a cause of widespread land conflicts in China,
as state officials appropriate the benefits of transitions to higher value uses of land.
We title such an arrangement: “Government gains, farmer pains” (Chen 2014). Rural
land transactions would appear to offer a more equitable alternative to state-based
mechanisms of property rights exchange. This, in turn, would likely increase the
efficient use of rural land in much of China thereby perpetuating and, perhaps, even-
tually satisfying Duguit’s theory of property’s social function. However, allowing
the contractual transfer of rural land use rights is a sensitive socio-political topic in
China, not only due to the potential unrest arising from the aggrieved farmers, but
also because it raises issues stemming from citizens’ potential engagement with the
state.
Property rights cannot exist as a social and economic institution without laws
which define their structure and obligations. As stated above, there is a clause in
the Chinese Constitution prohibiting the government from taking private property
for public interest without fair compensation. But in practice, the public interest
requirement is a veritable “black hole” and is open to wide and potentially self-
serving interpretations. This renders it a relatively toothless provision that is unable
to hold local governments accountable for their actions. Moreover, the compensation
mechanism does not require local governments to take relevant factors into account.
For example, the logistical costs of moving, the value inherent to location of the
property, the value stemming from the short supply or high demand of the land, and
the farmers’ employment and social security issues. Therefore, there is a dire need
to spell out public interest and fair compensation in more detail in a special statute.
areas [Fā gǎi jı̄ng tı̌ (2007) No. 1248]. This Notice was dated 7 June 2007. The Chinese version of
this Notice is available at http://politics.people.com.cn/GB/14562/5844173.html (accessed August
12, 2018).
20 Guangdong has actually been made a provisional laboratory even earlier than Chengdu and
Chongqing.
21 To allow legally recognized transactions of rural land does not amount to total privatization of
rural land as zoning (land planning) ordinances will still apply for sake of food security and nature
preservation as well as preservation of indigenous people’s “family land”. I thank professor Frank
Upham for making this point.
The question here is this: How far should the government forbear itself from
frustrating the owners’ expectations regarding what they can do with their prop-
erty? Examining this question in the Chinese context, it would appear that there is a
burgeoning, albeit gradual, trend that property rights are taking root in China. This
shows that The 2011 Expropriation Regulation is designed to constrain the unfettered
power exercised by local government to take urban land. In rural areas, the recent
urban-rural coordinated development reform allows rural land to be rented out, or
even sold to third parties, thus enabling the privatization of rural land use rights.
14.3 The Role of Social Capital in the Chinese Homeowner

Associations’ Governance
Homeowner associations (HOAs) are a form of institutional arrangement for col-

lective management of common property in condominium housing. They have been
introduced to China under a broader condominium law reform for more than a decade,
but the performance of the Chinese HOAs has been mixed.22 HOAs are commonly
considered as a common property regime constructed for the collective governance
of urban commons. We will examine HOAs’ performance in the Chinese context
through the lens of social capital.
Does social capital matter in Chinese HOA governance? Specifically, how to
unfold the relations between social capital and collective action in condominium
housing? China, as a transitional economy, is an important yet understudied jurisdic-
tion for HOAs in the context of condominium governance.23 Important changes in the
last few decades in China’s property law and housing market additionally highlight
the need for an examination on the performance of HOAs using a state-of-the-art
approach such as the concept of social capital and collective action. Our result will
provide insights on the prospect and limitation of the Chinese HOAs, and will be
useful for the Chinese law reformers to identify needs and ways to enhance future
improvements on HOAs’ performance to cope with the nation’s ambitious goal of a
large-scale social harmonization.
In essence, HOAs share the characteristics of a common property regime. Accord-
ing to Ostrom, a common property regime is a self-organized, self-governed cooper-
ative management regime for common property.24 It consists of a well-defined group
whose membership is restricted, a well-defined resources that the group will manage
22 See e.g. Read (2008). See also Wang (2014).

23 Among the previous studies on the Chinese HOAs, a popular theme is to examine the social
implications of HOAs in urban China, or the rise of grassroots democratic governance from the per-
spective of rights. Another popular topic is the internal governance or practical problems associated
with the Chinese HOAs’ operation. See Chen (2016, 2–3).
24 Ostrom (1990).
338 L. Chen et al.
and use, a set of institutional arrangements that define each of the above, and the
rules of use for the resources in question.25
Collective action in the context of HOAs can take different forms such as collective
decision-making, collective performance monitoring and collective rules enforce-
ment (Gao 2015). The most frequently cited problem of collective action is non-
participation of homeowners in HOAs’ meeting for decision making (Ho and Gao
2013). Non-participation will lead to the tragedy of HOAs for two reasons. First,
HOAs are self-governing organizations initiated by homeowners, and its survival
depends on the voluntary participation of homeowners (Chen 2010, 150–159). Sec-
ond, statutory requirements generally make it necessary for HOAs to secure a suf-
ficiently broad base of homeowners’ votes for effective collective decisions. For
example, in Beijing and Shanghai, an approved resolution in meetings of a HOA
requires approval from more than 50% of all homeowners and in gross floor area.26
14.3.1 Social Capital as a Facilitating Factor
In studying collective action and common property regimes, scholars have paid much
attention on the role of social capital as it ‘provides a synthesizing approach to
how cultural, social, and institutional aspects of communities of various sizes jointly
affect their capacity of dealing with collective-action problems’. 27 Theories of social
capital start to flourish with the works of Bourdieu, Coleman and Putnam (Field
2008, 13–47). Coleman’s concept relates to a basic component of a logic of action,
which ease social cooperation and attainment of collective common goods. Among
all, the most frequently used definition is the one by Putnam who regards it as
‘features of social organization, such as networks, norms and social trust that facilitate
coordination and cooperation for mutual benefit’ (Putnam 1995). Scholars admit that
social capital is an evolving concept (Grootaert and van Bastelaer 2002, 2). In this
chapter, at the risk of oversimplification, we take it as the capacity to resolve the
collection action problem. Technical civic competence is an essential element for
successful operation of the HOAs.
14.3.2 HOAs in China
HOA was introduced to China under a broader condominium law reform more than a
decade ago. Since 1988, the Chinese government has gradually embraced the concept
of private property, entrenching it in the distinctively-Chinese yet significant ways in
25 Bromley (1992). See also Bromley (1989).

26 Reg. 11 of the Beijing Property Management Regulation of 2010 and Reg. 17 of the Shanghai
Property Management Regulation of 2011.
27 See e.g. Ostrom and Ahn (2009).
its constitution, legislations, and regulations. In 1994, China introduced a compre-

hensive privatized and commercialized national housing reform policy. Not only has
it shifted much of the new development to the private sector, but also relieved grad-
ually the government’s responsibilities for maintaining and managing buildings that
were originally built to accommodate state employees (Lee 2000). In 2003, Chinese
condominium owners were provided with an authoritative but sketchy regulation, the
Property Management Regulation. For the first time, homeowners were allowed to
organize formal associations known as HOAs (yezhu dahui) for choosing property
management companies, and enacting and modifying homeowners’ covenants and
HOA rules and procedures (Wang 2014). Later in 2007, the Property Law of the
PRC came into effect with the intension to elevate the protection of condominium
owners’ property rights. Since then, condominium ownership has been institution-
alized and homeowner’s autonomy of management is statutorily recognized (Chen
and Kielsgard 2014).
The PRC’s national law serves the purpose of providing basic guidelines for its
provinces and municipalities to follow and implement (Kielsgard and Chen 2013).
Every province and sub-provincial cities in China, by now, have their own local con-
dominium rules. Local rules are vital in China for fostering legitimate and effective
condominium HOAs. Together, by a series of regulations promulgated in the early
2000s alongside the scattered provisions in the 2007 Property Law of the PRC, China
has created the legal infrastructure for condominiums and their internal governance
and maintenance, chiefly through the establishment of HOAs (Wang et al. 2012).
At present, condominiums are the dominant mode of residential property in urban
China. They are playing an important role in light of China’s broader process of
urbanization and privatization. In 2014, China unveiled its first-ever official plan
for urbanization. It set out an ambitious goal of moving 100 million of villagers to
cities, as well as granting formal urban status (hukou) to another 100 million of rural
migrant workers currently living in cities but hitherto denied access to public services
such as schools and healthcare. To facilitate the migration and formal absorption of
millions of villagers into China’s urban areas, development of condominiums and the
introduction of the legal institution of HOAs for self-governance of condominiums
are deemed necessary.
The concept of the Chinese HOAs is a ‘legal transplant’ from foreign models.
Like many other foreign jurisdictions, the HOAs in China are operating as self-
organized, self-governed organizations. However, their formation and operation are
subject to the influence of local government agencies such as the residents’ com-
mittees (jumin weiyuanhui),28 which undertakes the responsibility of supervising
HOAs and monitoring their activities (Yip 2014, 10). In terms of responsibilities,
the Chinese HOAs are allowed to decide on matters related to property management
and maintenance, their own internal governance, and their joint ownership and joint
28 Article 75 of the 2007 Property Law of the PRC stipulates that ‘the department concerned of
the local people’s government shall give guidance and assistance to the formation of an owners’
assembly and the election of an owners’ committee’. Owners’ assembly means yezhu dahui or
HOAs in our context, whereas owners’ committee means yezhu weiyuanhui or HOAs’ executive
bodies.
340 L. Chen et al.
management rights.29 In terms of issues they are typically involved, Wang identi-
fies as many as 13 neighborhood issues of such. These issues are mainly associated
with developers or property management companies. They include matters concern-
ing common facilities and space, construction quality, deeds, provision of utilities
(water, heating, electricity-related services), neighborhood cleanup and beautifica-
tion, security, transportation and parking management, road maintenance, property
management fee and common income (Chen and van der Merwe 2009).
The development and performance of the Chinese HOAs have been mixed. It has
been revealed that over 80% of urban neighborhoods in Shanghai have set up HOAs,
but only 25% of residential neighborhoods in Guangzhou had established HOAs by
the end of 2013 (He 2015). In Shenzhen, the HOAs figure was reported as 34%, and
such figure was believed to be close to the national average.30 From time to time,
problems associated with HOAs have been under the spotlight of the media.31 Many
studies have attempted to review the challenges and difficulties faced by HOAs.
They have identified HOAs’ problems in connection with legal defects, institutional
constraints, power relationship between stakeholders, as well as organizational and
leadership problems among many others (Gui and Ma 2014).
Social function theory holds in social capital study in Chinese HOAs because
it underpins that the ultimate goal of an effective HOA governance is to foster an
efficient, cohesive, and harmonium residential community. Social capital focuses not
only on citizen cooperation as a form of civic engagement but also on the ways citizen
cooperation is facilitated and influenced by various aspects of social capital, including
network size, diversity, density, trust, and reciprocity. These cultural traits feedback
in virtuous circle.32 By evaluating HOAs through a normative and culturally sensitive
lens, our research will provide law reformers with insights into potential conflicts
between the types of collective action envisioned in HOAs under housing reforms
and the cultural orientation of a society a particularly salient issue given the Chinese’s
Government plans to accelerate urban settlement. The results will add to the literature
where there is a lack of attention on the interrelationship between law and culture
in urban design and property law (Lehavi 2016). It will also arouse further interest
among scholars and law reformers in studying the tie between different private law
institutional design, norms and culture.
29 Article76 of the 2007 Property Law of the PRC.

30 常龙川, ‘解决业委会成立难要對症下药’ 深圳特区报 Shenzhen Special Zone Daily (Shen-
zhen, 26 April 2016).
31 See, e.g. Shanghai Television SHHAI1 Programme (in Chinese):
上海电视台新闻综合频道《市民议事厅》栏目: 拿什么监督你,我的业委会? (22 April 2017).
https://www.youtube.com/watch?v=dJezmJEYLbQ&feature=youtu.be. Accessed 8 October 2017.
32 For example, Luigi Guiso et al. describe social capital as ‘good’ culture in the sense that it
represents ‘a set of belief and values that facilitate cooperation among the members of a community’:
Guiso et al. (2007, 3).
14.4 Designing a Land Registration System

for the Emerging Rural Land Market in China
In China, all urban land belongs to the state, and rural land belongs to collectives.
There were no individual land rights. While urban land can be commercially trans-
ferred due to 1988 constitutional amendment, thus creating a flourishing property
market rural land was locked and frozen. Rural land has remained under collective
ownership overseen by local governments via the agents, village Committee. Farm-
ers are not allowed to buy or sell or mortgage the land they live in. This chokes the
rural economy. As a result, in rural China, property rights are weak and vulnerable
to dictates of local government policies (Michelson 2007; Pils 2006).
Despite the passage of a plethora of fragmented departmental rules, local reg-
ulations, measures, directives, explanations, and judicial pronouncements by the
Supreme People’s Court in relation to land registration, there is no uniform law
dealing with land registration (Chen 2014, 65–70). The PRC Property Law of 2007
(“Property Law”) provisions on land registration are abstract and hortatory, but it
strengthened the protection of farmland by turning the “land management contract
right” into a property right. The Property Law also set out some general principles,
which entail a positive registration system (Torrens style) in urban land.33 Nonethe-
less, with a closer look, one discovers that the voluntary registration system is kept
for rural land that does not mandate the registration to effectuate the property inter-
est. Under Chinese land law, rural land transfers refer to the transfer of management
rights of agricultural land and alienation of the “right to homestead use” in rural
land.34
However, cautious and piecemeal, some pilot experiments have been conducted
in designated areas in order to transfer the rural land. In 2007, the State Council (PRC
Central Government) allowed Chengdu to conduct pilot projects in relation to the
registration and transfer of agricultural land.35 This was called a gradual establish-
ment of a “unified urban and rural market” for construction land. Since then, Chengdu
municipality has been implementing and fine-tuning many concrete policies to set
up a legal and institutional framework that recognizes rural property rights. Since
the founding of the PRC, agriculture and peasants have suffered during the Chinese
Communist Party regime’s ambitious program of industrialization, as government
policy was never in the favour of rural producers (Oi 1999; Lambert and Parker 1998).
Bickering in Beijing does not stop tinkering in the provinces. The above experiments
have been operating for years and some are ripe for scaling up.
Against this background, one may ponder what type of land registration system
needed if all rural land in China become commercialized. Specifically, whether reg-
istration of transactions on rural land in China should be voluntary or compulsory?
It is proposed that when there are mounting numbers of property transactions (sale,
33 Property Law of PRC 2007 Articles 6, 9, 16, and 17.

34 Property Law of PRC 2007 Articles 129 and 155.
35 See note 19 above.
342 L. Chen et al.
lease and mortgage etc.) in major urban cities, making existing rights and transfers
of these rights a matter of public record via compulsory titling is usually well worth
the cost, especially if low-cost mechanisms are employed. However, in rural areas
where transaction volume is low, the voluntary titling system may be adopted with
the cost benefit analysis. However, if a trend toward frequent transactions of rural
land in China is identified, a similar compulsory registration system may be consid-
ered. This is especially the case when individual rural farmers, who hold land rights
but their land shares have not been individually demarcated, develop a perception of
the reality of land value.
Until recently, efforts were rarely made to assess the role of land registration
in strengthening property rights and thus achieving long-term economic growth in
Chinese rural land. However, a handful of scholars have very recently made efforts
to analyze the impact of formalization of property rights in rural China (Ping and
Prosterman 2009). They have approached the issue either by conducting surveys
on cross-provincial scale (Zhu et al. 2006), by interviewing farmers and heads of
village committees (Kung 2002; Brandt et al. 2002) or by a theoretical analysis with
a case study (Trebilcock and Veel 2008; Upham 2009). These studies have begun to
shed light on the institutional environment and inner dynamics of rural Chinese land
tenure system, as well as the potential social and political impact arising from the
commercialization of rural land.
In economic terms, an effective system of property information is a public good
(Banner 2002, 362). When property information is standardized and accessible, the
system allows for effective planning that incorporates demographics, land use, and
environmental-impact assessments (Deininger 2003, 24–25, 31–32). Because the
benefits are so broadly dispersed and the costs of providing a standardized property
system are so high, some form of state intervention is typically necessary to establish
national systems for the recording of land information.
Systematic programmes to register land titles or transactions are a favoured instru-
ment of development programming, as a mechanism for capturing the benefits of
secure property rights (World Bank 2004, 80–84; Deininger 2003, 39). Yet system-
atic approaches are not free of costs. Klaus Deininger concludes from a survey of
the literature that: “Land ownership as certified by formal title will still be the option
of choice where land values are sufficiently high and the administrative capacity for
land administration is available” (Deininger 2003, 56). However, he also notes that
in many cases land titling programs did not achieve their expected outcomes, for a
variety of reasons relating to institutional supply and demand: either landholders did
not want to receive formal land titles, or to register transactions after receipt of formal
titles, or state agencies were incapable of implementing land titling in a transparent
manner, free of land grabbing by powerful interests (Arruñada 2012, 101–111).
Trebilcock and Veel summarize the implications of institutional supply and
demand issues for land formalisation programs in terms of three preliminary ques-
tions36 :
36 See Trebilcock and Veel (2008, pp. 401–402).

• Do the benefits of establishing formal property rights outweigh the costs at all
stages of development?
• What are the social, economic political and legal preconditions necessary for the
formal regime to function effectively?
• How does the process of reforming the property rights regime actually occur?
In terms of the registration of transactions, the benefits of mandatory approaches
relate to the cost of information. Subject to potential exceptions, a prospective pur-
chaser of an interesting land need only look at the register to determine applicable
property interests, and not make other title enquiries; as she is protected from inter-
ests arising from unregistered transactions. Conversely, however, there are costs of a
system of mandatory registration of transactions, including the administrative costs
of extending the register to rural areas, the private costs of registration, and the social
costs of injustice of conflict should insist-holders lose otherwise valid rights due to
ignorance or non-compliance with the law. The extension of mandatory systems of
title or transaction registration is a social issue: it requires prior assessment of the
nature of the land market, the nature of transaction instruments, and the extent of
legal awareness and engagement with the state.
If there is a low level of demand for a mandatory transaction registration system,
or high costs and the supply of the systems, then it is less likely that a mandatory
scheme will produce greater net social benefits than a voluntary one. Social demand
for registered titles is a function both of land values—is the value of the land worth
the private costs of titling?—and pre-existing systems for the provision of security
relating to land. Where the costs of land transaction registration are high, landholders
may prefer to continue to use informal decentralized systems.37 Failures in supply of,
or shortfalls in demand for, registered land rights can lead to unsuccessful attempts at
extending land registration to rural areas. The result can layer formal institutions on
informal arrangements and allow disputants to engage in legal institution shopping,
which undermines the benefits of centralized land registration (Bruce 1998). Alterna-
tively, titleholders may fail to record subsequent transactions in the official register.
This derivative registration problem commonly results from continued adherence to
decentralized systems of land rights management, even after the titling system is in
place (Barrows and Roth 1990). One of the questions is whether a derivative reg-
istration problem could arise in China if a mandatory transaction registration were
adopted.
Whether or not a critical mass of interest holders uses law as a basis to assert
property rights turns on a range of factors, such as the coercive capacity of the state,
social perception of the law’s function, and more importantly, cultural preferences
for coordination mechanisms (Fitzpatrick 2006, 998–1005). The range of variables
requires a multi-disciplinary approach that combines the methodological individu-
alism of economic narratives with the collective analysis of perspectives such as a
socio-legal and culture analysis.
37 Conceptually, both compulsory and voluntary titling systems are formal but voluntary system is
less centralized because it is each rightholder who decides to title or not.
344 L. Chen et al.
The pilot project currently adopts a voluntary registration system (similar to a

deed registration system) in rural districts in Chengdu, and many other places in
China and transactions (including leases and transfers) may be registered at the local
registration office. This seems to be justified as according to the Data from the local
rural land registration office, which will chart the fluctuations in average price per
mu in the different rural districts, from the beginning of the pilot project in 2008 up
till 2017.
14.5 Fair Use in Chinese Copyright Law
Copyright is not an absolute monopolistic right since it is restricted by scope and

time (Davenport 1993, 57). A distinct characteristic of copyright is it only protects
expressions and does not extend to ideas beyond what has been written or otherwise
expressed in material form.38 Various limitations to curtail copyright may include
duration limitations as well as exceptions enabling others to access and use the works
and to develop derivative works. Therefore, copyright has a dual nature for on the
one hand it is a property right, but on the other hand it is much like a public good.
Copyrighted works should be free in the sense of a free flow, not a free lunch. Either
an overly large amount of protection or too lax copyright regulation can be harmful
to society’s well-being. Under civil law, moral rights are essential components of
copyright, referred to as droit d’auteur, that is, authors’ rights (Lipszyc 2004). In
common law, copyright has more economic significance (Torremans 2005, 172;
MacQueen et al. 2008, 41). China does not have a copyright law tradition (Alford
1995; Handong and Wang 1994; Wu 1996, 19–29). One important reason for the
absence of copyright law was that the state did not intend to create a legal system to
protect private rights, and this included copyright. Another reason for the absence of
copyright protection is the influence of Confucianism, as intellectuals and publishers
alike believed that maintaining a high level of morality was more important than
pursuing financial gain (Wu 1996; Deng 2006, 264–267). Moreover, since most
authors and artists who were Confucian intellectuals believed that creative activities
were based on cumulative knowledge, it was unnecessary and undesirable to evoke
property rights to protect their works (Shao 2005, 412). Confucianism’s emphasis on
the authenticity of past knowledge that is transferred to the future meant that much
creative activity was actually an accumulation of past knowledge.39 Consequently,
to write a good poem, a poet needed to read and memorize a good many poems, and
without plagiarizing any of them he should be able to write a new poem in a similar
38 It seems the higher the level of generality or abstraction an idea is, the less likely it is to be protected,
see Plix Products v Frank M Winstone (1986) FSR 63 (High Ct of New Zealand) per Prichard J
92–94 (aff’d Plix Products v Frank M Winstone (1986) FSR 608 (Ct App of New Zealand)).
39 Confucius was an author rather than merely an editor and compiler, see Cherniack (1994, 16);
Hall and Ames (1987, 90). Peerenboom describes Confucius as a creator, see Peerenboom R.,
“Confucian Justice: Achieving a Human Society”, (1990) vol. 30 (1) International Philosophical
Quarterly, 17–32.
style. Many Chinese scholars agree that respecting past knowledge does not stymie
an author’s creativity nor does it confine authors to an outmoded past and archaism.40
Therefore, intellectuals were not keen on protecting their works with exclusive
property rights. Confucianism had a profound influence on intellectuals, and the
Chinese society as a whole, even until today. In order to make the copyright law
system a good fit for China’s needs, the tradition of sharing knowledge should be
taken into account in preserving a wide access to artistic and literary works by the
general public.
PRC’s first copyright legislation was not promulgated until 1990, and it only
granted authors a very limited amount of exclusive copyright protection.41 China
reformed its copyright law in the 1990s as it shifted to a market-economy. It acceded
to the Berne Convention in 1992 and the WTO in 2001. In order to meet the require-
ments of the TRIPS Agreement, China passed the Copyright Law Amendments of
2001 (Copyright Law Amendments) and adopted a number of regulations to imple-
ment the Amendments.42 China also acceded to the WIPO Internet Treaties and
passed Regulations on Protection of the Right of Communication through Informa-
tion Network43 (Information Network Regulations, thereafter “INRs”) that became
effective in 2006 to implement the Treaties. Recently the Copyright Law of 1990 is
undergoing significant reform, and it is very likely the text of the legislation will be
structurally expanded with more comprehensive and systematic copyright protection
(Jiao Hongbing King and Wood Mallesons 2012).
During the 20th century, East Asian universities have been teaching and training-
oriented while research has been left to the public sector (Mathew and Mei-Chih
2007). The teaching-oriented model, also known as the “late comer development
model”, has quickly boosted East Asian countries’ national economies by training
human capital with necessary skills. However, in the 21st century, China and other
East Asian countries also need to enhance the capacity of their institutions of higher
education to generate original research required for a knowledge economy. Mean-
while, China needs to continue to provide basic education to eliminate illiteracy and
train skilled workers. China’s Ministry of Education has recently publicized a plan
that aims to make a nine-year compulsory education available to all children, to
improve the quality of higher education and to promote vocational education (Min-
istry of Education 2009).44 The Ministry of Education is encouraging the growth
40 Deng (2006, 22).

41 Authors has a right to publish, a right to be named, a right to adapt a work, a right to maintain
the integrity of a work, and a right to be paid, see Article 10 of the Copyright Law of 1990 Order
of the President of PRC [1990] No. 31.
42 Chinese intellectual property legal system is comprised of three major parts: laws, administrative
regulations promulgated by the State Council, and department rules. The Supreme People’s Court
also is involved in policymaking by issuing judicial interpretations. For an introduction, see “147,000
IPR Cases in the First-instance Concluded in 2016” available at http://www.chinaipr.gov.cn/article/
cases/201703/1903538.html (assessed 27-09-2018).
43 Promulgated by Decree No 468 of the State Council on 18 May 2006.
44 The Compulsory Education Law was promulgated by Order No 52 on 29 June 2006; English
version is available at http://www.npc.gov.cn/englishnpc/Law/2007-12/12/content_1383936.htm

346 L. Chen et al.
of the private sector, with both enterprises and non-profit organizations providing
vocational education (Ministry of Education 2009). In China, to promote scientific
research and to develop education at all levels is a national development policy. China
has an advanced information network infrastructure, able to distribute digital materi-
als at a low cost for education and research. Now, it is crucial to develop the copyright
law to unfetter the dissemination of learning materials in digital and printed forms.
In the area of copyright law, it is widely acknowledged that copyright should be
limited for sake of its social function and public interest. Article 4 of the Copyright
Law puts forward general limitations on copyrights. One limitation is that works
prohibited by law from being published or distributed shall not be protected under
the Copyright Law. The other limitation is that copyright owners should not violate the
Constitution or laws, or prejudice the public interest when exercising a copyright.45
Article 4 is an attempt to ban works that are unconstitutional, illegal or immoral.
However, in 2009, the WTO Panel concluded that Article 4 was inconsistent with
China’s obligation to provide equal protection for domestic and foreign works under
the Berne Convention and the TRIPS Agreement (World Trade Organization 2009,
12).46 Since a country should have the discretion to censor works protected under
copyright and ban specific inappropriate works from circulation within the country,
Article 4 of the Copyright Law can be amended. This can be done to state specifically
that the authors of copyrighted works prohibited by law from being published or
distributed shall not have their economic rights for their works protected under the
Copyright Law. This implies that the Copyright Law still protects their moral rights
as authors.
14.5.1 Private Use
Article 22 of the Copyright Law exempts the utilization of copyrighted works for
private study, research and self-entertainment. It does not define what activities con-
stitute “utilization”. In practice, a user usually reproduces a work or a part of it to use
the work. The Copyright Law provides that reproduction can be done by printing,
photocopying, lithographing, producing a sound or video recording, duplicating a
recording, or a photographic work, or by other means.47 It is unclear whether users
are exempted from copying a work for specific purposes under Article 22, particu-
larly copying with electronic or digital equipment. It is implied that if reproduction
(accessed 24-05-2010); the Law on the Promotion of Privately-run Schools was promulgated
by Order No 80 on 28 December 2002, English version is available at http://www.npc.gov.cn/
englishnpc/Law/2007-12/06/content_1382110.htm (accessed 24-05-2010).
45 Article 4 of the Copyright Law Amendments of 2001.
46 World Trade Organizations China—Measures Affecting the Protection and Enforcement of Intel-
lectual Property Rights WTO Panel Report (2009), 12 para 7.18.

47 Article 10(5) of the Copyright Law Amendments of 2001.
is an indispensable process in the utilization of a work, it falls under the private use
exemption.
A major problem with the private use exemption is that it is too broad, as it
allows free use of works for one’s personal recreation. This provides society with
little benefit. This provision should be amended in such a way that private use for
study or research continues to be exempted, while the exemption for private use for
self-entertainment should be deleted.48 This is because an exemption for the use of
personal entertainment was based on a market failure theory. Nowadays, it is possible
for a user to employ technology or use a collective copyright society to contact a right
holder and pay usage charges. Consequently, the exemption does not fulfil its original
function and should be dispensed with (Wu 1996, 280; Chen 2005, 174–175).
Nevertheless, it may be inappropriate to introduce an outright prohibition of pri-
vate copying of copyrighted works for personal recreational purposes. Rather, copy-
right law could allow private copying for purposes other than study or research but
require users to pay right holders for making copies. Although individual users profit
little from private copying and there is little effect on right holders’ financial interests,
large scale private copying may reduce right owners’ income. A number of Chinese
copyright scholars propose to allow private copying for specific purposes under copy-
right law. Then equipment that enables users to copy and store such copies would
have taxes levied on them. The levy would compensate copyright holders’ losses for
copying done with equipment having copying and storage functions.
However, some Chinese copyright experts doubt the feasibility of a levy system.
First, an all-encompassing levy on equipment having copying and storage functions
does not distinguish the purpose of copying. Hence, although the Copyright Law
allows free copying for private study and research, users have to spend more to
purchase or hire a copying machine. Thus, there is a reduction in the benefit that
the exemption is meant to confer on students and researchers. Second, China does
not have an efficient system able to collect and allocate monies from the levy on
equipment to right holders based on the frequency of usage. Therefore, a levy sys-
tem could lead to an unfair distribution of monies to right holders, regardless of
usage. Therefore, it is unnecessary for China to establish a levy system on copying
equipment.
In summary, where the private use exemption is concerned, the relevant section
in Copyright Law should distinguish private use for study or research from private
use for personal entertainment, and retain the exemption for study and research.
Copyright Law allows users to make private copies for purposes other than study
and research, and requires them to pay right holders through a licensing scheme. It
is unsuitable for China to adopt a levy system on equipment to compensate right
holders for their private copying losses. Rather, it would be better to let copyright
holders use a collective copyright management organization to license their works
to users and collect remuneration on their behalf.
48 Cao (2006, 93) (Chinese version). He suggests the copyright law allow a person’s family or the
people with a close relationship with the person to make a copy or copies of a work on behalf of
the person.
348 L. Chen et al.
14.5.2 Libraries’ Exemptions and a Right to Lend
Article 22(8) of the Copyright Law allows libraries to reproduce copyrighted materi-
als in their collections for display or preservation, without the need for authorization.
The INTERNET Network Regulations that implement the Copyright Law has two
exemptions for libraries.49 One exemption is for libraries to provide a digital ver-
sion of a published work to readers with a reading system supported by Internet
technologies on its premises. Here the libraries are required to employ technological
measures to prevent readers from copying digital works from a reading system.50
Another exemption is for libraries to digitize a copyrighted work for display and
preservation if the original is lost, damaged, or stored in an obsolete format, and is
unavailable in the market at a reasonable price. Library exemptions do not apply if a
library profits from digitization and distribution of a work. Moreover, neither exemp-
tion applies if a copyright holder declares in advance that any further distribution of
a work is not allowed.
In China, conventional libraries have a right to lend the printed material in their
collections to readers. The Copyright Law grants copyright holders a right to sell or
donate an original copy of a work or copies of the original to the public.51 Simulta-
neously, the Copyright Law grants copyright holders a right to rent cinematographic
works and computer software to the public.52 Clearly, the Copyright Law does not
confer copyright holders a right to rent copyrighted works other than cinematographic
works and computer software to the public. Therefore, libraries have only a public
lending right to lend their collections to readers. The libraries also can make print
copies of a work upon a user’s request and give them to the user without infringing
the copyright.
Both conventional and digital libraries (Greenstein and Thorin 2002) risk infring-
ing on copyrights when transmitting copyrighted material over an information net-
work. Since the Copyright Law Amendments confers copyright holders with a right
to communicate their works to the public via an information network, libraries in
particular face a risk of infringing on the network communication right in the trans-
mission process. There is an imbalance in the copyright law for while protection for
copyright holders is strengthened in an information network environment, exemp-
tions for libraries are neglected. Therefore, this part of copyright law needs revisiting
to take into consideration that societal needs to access knowledge should be balanced
with generous copyright exemptions. As China shifts to a market economy, non-state-
subsidized libraries established by private donors or social entities can be non-profit
and provides services to the readers, which is to the advantage of the general public
(Tang 2011, 211).
Therefore, the Copyright Law should make it very clear that non-profit libraries,
whether they are state funded or privately funded, can apply for the exemptions.
49 Article 7 of the Information Networks Regulations.

50 Article 10(4).
51 Article 10(6) of the Copyright Law Amendments of 2001.
52 Article 10(7).
Notably, the “non-profit” requirement does not imply that libraries cannot charge for
their electronic reading system services. This is because libraries, particularly ones
not subsidized by the state, need to recover their costs in maintaining their electronic
reading systems and the equipment used for digitization.
The Copyright Law, the Copyright Law Amendments and the INRs give students,
teachers, educational institutions and libraries a number of exemptions and statu-
tory licenses that allow them to use copyrighted material without authorization. A
major structural flaw of the Copyright Law is that it did not incorporate a three-step
test similar to that adopted in the TRIPS Agreement laying out criteria for copy-
right limitations and exceptions. Since exemptions are enumerated definitively and
exclusively, without a three-step test, judges lack flexibility to interpret and apply
exemptions in different situations, particularly where an exemption cannot be applied
in a straightforward way.
The limitations and exceptions for education and research need to be developed
in a digital environment. First, the exemptions for educational purposes should be
broadened. The reproduction exemption should cover reproduction activities for non-
classroom educational programs such as distance education, as well as education for
the disabled and the blind. In addition to reproducing or translating a work permitted
under the current copyright law, teachers should be allowed to perform and broadcast
a copyrighted work. Distribution of a work being reproduced or translated should
not be completely prohibited, but should be allowed with certain conditions.
Second, the statutory license for distance education should apply to non-profit
institutions providing educational programs with no commercial gain. This would
encourage the private sector to provide education to the public.
Third, copyright law should create new exemptions to allow such institutions as
schools and libraries to distribute material over an information network, provided the
institutions are non-profit organizations and do not profit from the distributions. Since
teachers and library patrons are allowed to copy a small quantity of non-authorized
print material for free, copyright law should ensure that they can deal with digital
copyrighted material in essentially the same way by stipulating a minimal amount
of a work that users can copy without authorization.
Finally, the exemption for private use of copyright works allows learners to use a
work for study or research. It is important that unauthorized reproduction of a work for
study and research be continued to be exempted from payment, while unauthorized
reproduction for personal recreation should be exempted but subject to payment to
copyright holders.
Case analysis shows that China urgently needs to improve the collective copy-
right administration system to ensure that libraries and educational institutions can
continue to operate in the public interest, while at the same time abide by clear
and consistent copyright legislation. It has been shown that compensating copyright
holders with money from a levy system on equipment having a copying and storage
function is not an optimal solution. Rather, creating and using a collective copy-
right organization to license copyrighted material to individual users on a collective
basis would be a better solution. Therefore, it is essential to develop a collective
administration system under copyright law.
350 L. Chen et al.
14.6 Conclusion
While Duguit’s social function norm is being revisited with a renewed vigour by
many western legal scholars, a better understanding of his theory is essential for
those who would seek to implement the social-function norm of property or use it
as a point of departure for critiquing legal systems in which absolute rights-based
approaches are dominant. However, as the issues above illustrate, China stands in
stark contrast with many of these Western countries as the social function/social
obligation norm have been historically promoted if reluctantly employed.
Many Chinese academics have long advocated that a free rural land transfer mech-
anism is essential so that farmers might reap the benefits of strong national economic
growth. The logic is straightforward: It would encourage the consolidation of tiny,
inefficient plots of land leased by collectives to individual farmers and allow these
farmers to collect the profits tied to the appreciation in the land’s market value. This,
in turn, would enable these farmers use to utilize the realized capital by starting urban
businesses or making urban investments thereby working to alleviate the urban-rural
divide. Academics further posit that a proper land market would protect farmers from
indiscriminate land expropriation by local governmental officials.
While such a free rural land transfer mechanism would certainly seem poised to
encourage and satisfy Duguit’s social function norm by increasing the efficiency of
the land, its apparent necessity highlights one of the more troubling tendencies of
Duguit’s theories. Put simply, the current system that academics are so keen to replace
has been routinely abused in the sense that it was manipulated as a theoretical basis to
carry out the home evictions and land grabs against farmers by some interest groups.
Yet, fundamentally, the current arrangement of China’s rural land policy could be
said to sit comfortably with many of Duguit’s principles relating to the social function
norm. Thus, it should be noted that the potential for abuse of Duguit’s theories—as
so disturbingly displayed by Chile’s Pinochet—is considerable.
Nevertheless, with closer scrutiny and a keen eye on history, the social function of
property theory espoused by Duguit is by no means incompatible in contemporary
China. On the contrary, it is still a relevant paradigm and an important theory with
which to model contemporary policy in China. As the aforementioned issues above
illustrate—from urban HOA communities, rural land markets, copyrighted works
and land taking in China—the very concept of property is being progressively, albeit
gradually, broadened to include the inherent rights found in the kind of society that
fosters and encourages the individual to live a fully human life (Macpherson, 1975,
120).
Though often contrasted with the classical liberal definition of property, viewing
Duguit’s theory of the social function norm from the Chinese perspective is instruc-
tive. Long before his theories gained prominence, China had championed theories
that ran parallel to those advocated by Duguit. Today, it might be argued that China
is even outpacing its western counterparts in readily adopting his principles while
gradually moving toward a more open and progressive society. Owing to the scarcity
of community resources, particularly in a vast country like China, recognizing prop-
erty rights as a sort of obligation or stewardship is inevitable in order to strike a

fair balance between public interest, personal interest, and environmental preserva-
tion. The viewpoint that ‘he who owns may do as he pleases with what he owns’
has given way to a perception which ‘hesitatingly embodies an ingredient of stew-
ardship’.53 Embracing the social obligations and stewardship placed upon property
owners should not only bring about a more harmonious and equitable Chinese soci-
ety but serve to demonstrate that Duguit’s social function norm is as relevant today
as it was in 1911.
Acknowledgments The research work was kindly supported by a GRF grant: CityU 11400814
from the Research Grants Council of the Hong Kong Special Administrative Region, China. The
authors would like to thank Kristy Chi Tung Tse for her excellent research assistance.
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Chapter 15
Can Social Property Survive Under
Neoliberalism?: A View from Australia
Peter D. Burdon and James G. Stewart
Abstract This chapter addresses the practicalities and possibilities of Leon Duguit’s
social function norm under neo-liberalism. Addressing Duguit’s articulation of the
social function norm through a contemporary lens, this chapter argues that the steady
shift towards individualistic property relations limits the social function norm’s appli-
cation. Drawing from key thinkers on neoliberalism, this chapter balances contem-
porary issues in property, with Duguit’s own evolutionary assumptions on property
rights. We conclude by acknowledging the difficulties in finding common ground
between the social function norm and contemporary, neoliberal approaches to prop-
erty, before identifying one major exception. Through Bonnie Honig’s idea of ‘public
things’, we argue that within the public space there is a potential to utilise the social
function norm to aid ideas of community and property. This nuanced application of
Duguit locates a nexus where social obligations can function under neoliberalism.
Keywords Social relations · Neoliberalism · Public things · Property · Social

obligations
Léon Duguit was a pioneering French intellectual and scholar. While known primarily
as a public lawyer, Duguit’s intellectual interests were wide ranging. During his life,
he was credited with pioneering socio-legal scholarship and even sought to rename
law faculties as social science faculties (Duguit 1889; quoted in Jones 2002, 39).
While teaching at the Caen Law Faculty in 1884–5, Duguit pushed against the narrow
conception of law that dominated the academy and sought to ‘break down the rigid
interdisciplinary boundaries’ that characterized French scholarship. As part of his
effort he gave classes to students in the Faculty of Letters on agrarian laws of the
Roman Empire (Duguit 1889; quoted in Jones 2002, 39). Eight years later in 1892
Duguit was teaching at the University of Bordeaux. Here he brought legal scholarship
into direct conversation with the work of his colleague Émile Durkheim and thus gave
birth to a fruitful area of study that continues to this day.
P. D. Burdon (B) · J. G. Stewart

Adelaide Law School, The University of Adelaide, Adelaide, SA, Australia
e-mail: peter.d.burdon@adelaide.edu.au

356 P. D. Burdon and J. G. Stewart
In the English-speaking world, Duguit is best known for articulating the social
function norm (Mirow 2010, 191–192). As noted in the introduction to this volume,
Duguit summarised this idea during a six-part series of lectures at the University
of Buenos Aires (The Buenos Aires Lectures). Here Duguit summarised the norm
as follows: ‘Property is no longer the subjective right of the owner; it is the social
function of the possessor of wealth’ (Mirow 2010, 199). While Duguit was not the
first to articulate this idea,1 his work has been cited as ‘transplanting the French
roots of the social function of property into foreign soil in many countries around
the world’ (Mirow 2010, 200; see also Bonilla 2011; Cunha 2011).
In this paper we attempt to cover three areas of analysis. In part one we describe
how Duguit’s social obligation norm derived from his more developed analysis of
the nature and function of the state. As part of this discussion, we also connect
Duguit’s perspective on property with other theorists who influenced the content and
structure of his thought. With this background in place, part two unpacks Duguit’s
social relations theory. While his ideas share similarities with contemporary social
relations theories of property we argue that the positions are distinct and should not
be conflated. One important point of difference is that Duguit expresses an evolution-
ary perspective on property which, while couched in empirical terms, suggests that
property relations go through stages of development and are gradually improving (at
least in Europe).
Against this evolutionary reading of property, in part three we suggest that prop-
erty relations are becoming increasingly individualistic, instrumental and focused on
individual rights rather than obligations. To make this argument we draw on Wendy
Brown’s description of neoliberalism and consider the ways neoliberal rationality
is shaping contemporary property relations. While social obligations might be in
the background today we do not theorise neoliberalism in a determinative way or
foreclose the possibility that they might become important again in the future. For
this reason, in part four we consider how the concepts of ‘public’ and ‘public things’
can encourage people to move beyond individualism and act in concert with others
through some vision of social obligations. Ultimately, we conclude that for social
obligations to be a powerful idea today it will be through material changes in history,
rather than from an idealistic or evolutionary reading of social progress.
15.1 The State and Obligations
Before investigating Duguit’s contribution to property law it should be reiterated that

he was primarily a public lawyer and his comments on property were ‘a very small
slice from his much larger life’s work on the nature and function of the state’ (Mirow
2010, 200). Duguit’s influence in public law has been compared with his compatriot
Montesquieu. Harold Laski, described Duguit as ‘without doubt the first of living
political thinkers’ (Jones 2002, 149; Howe 1953, 105). Duguit’s perspective on the
1 For a study on Germany see Raff (2004).

15 Can Social Property Survive Under Neoliberalism? … 357
state was influenced most directly by Henri de Saint-Simon, Herbert Spencer and
Emile Durkheim (Mirow 2010, 209–213). Saint-Simon was an important figure in
the development of socialist thought and argued that the French state would gradually
liberalise with the working class taking control from the military class (Jones 2002,
151). Spencer also theorised this shift from military power (warrior societies) to the
productive forces (industrial societies). His theory of social evolution posited the
‘gradual replacement of the military or ‘militant’ type of society by the ‘industrial’
type’ (Jones 2002, 151). Spencer’s evolutionary approach to society is also evident
in Duguit’s writing on the state and property.
Finally, Duguit was influenced by Durkheim’s sociological method and his con-
cept of ‘social solidarity’ (Mirow 2010, 202). Durkheim’s theory of social solidarity
was developed in response to the dominant theory of social relations which was called
‘contractualism’. Advocates of this view (including Spencer) argued that citizens in
developed societies ‘would depend upon the group only in proportion to their depen-
dence upon each other, and they would depend upon each other only through freely
concluded conventions’ (Jones 2002, 154). In this context, social relations were
analogous to a private contracted enacted between discrete individuals Dominick
LaCapra summarised this position as follows: ‘The typical form of social relation
would be the economic relation stripped of all regulation’ (Jones 2002, 154; see also
LaCapra 1985, 129). Aspects of this perspective were revived in a different context
alongside the rise of market liberalism and neoliberal thought.
For Durkheim (and Duguit) this was an untenable position. More than that—
contractual solidarity was considered such a hollow and diminished form of human
relationship that it might form the justification for a reactionary attack from the
populace (Jones 2002, 154).2 In response, Durkheim argued that changes in the
division of labour shifted the nature of society and generated new forms of solidarity
and interdependence. As society shifted toward organic relations, Durkheim argued
that repressive laws would gradually be supplanted by a restitutive system (Jones
2002, 158). As for the State, Durkheim argued that it would gradually develop more
complex ties with the rest of society and thus develop the ability to ‘think’ for the
populace and exercise authority on its behalf: ‘strictly speaking, the state is the very
organ of social thought’ (Jones 2002, 159).
Duguit adopted this perspective3 but was very careful to distinguish his thinking
from Marxism and the argument advanced by Engels that the ‘government of per-
sons’ would be replaced by the ‘administration of things’ causing the state to wither
away or die out (Engels 1978, 713). In fact, one common theme in Duguit’s writing
is the extent to which he feels it is necessary to distinguish himself from radical or
socialist thought.4 This is one of the factors that caused Duguit to adopt the term
2 Durkheim’s writings attest to his concern about moral anarchy (Anomie) and the potential for
reactionary groups such as Social Catholics to define key concepts in society.
3 In saying this I should also highlight that Duguit described Durkheim’s concept of ‘collective
conscience’ as a pure hypothesis. This is one of the reasons Duguit cannot be considered a pure
follower of the Durkheimian school.
4 In his lecture ‘Property as a Social Function’ Duguit goes out of his way to distance himself from
Marxism. In a rather unconvincing digression, he notes: ‘I am also not looking for whether, as some
‘social independence’ instead of the language of solidarity. For Duguit ‘social inde-
pendence’ required that one draw no distinction between the interests of individuals
and the greater community. His central claim was that ‘individuality progresses with
the growth of social differentiation and interdependence.’ Following Durkheim, he
concluded that ‘the processes of socialization and individualization, far from being
contradictory, are in fact logically connected’ (Jones 2002, 164). In his own words:
Socialization increases as a direct result of the division of labor; but the division labor itself
increases as a direct result of individualization; so that socialization and individualization
does not exclude each other, but one proceeds from the other (Jones 2002, 164).5
Thus, rather than conceptualising society in terms of discrete individuals that

enter voluntary contracts with one another, Duguit argued that there was no tension
between individual and collective interests:
…the degree of social integration depends on the degree of individualization; there is no
collective interest opposed to the individual interest, and the collective interest is only the
sum of the interest’s individual; in other words, the collective interest will be safeguarded
when all the individual interests will be, and all the better safeguard that the individual
interests will be better protected (Jones 2002, 164).6
In concrete terms, this led Duguit to argue that the state had certain concrete obli-
gations to citizens that included the ‘provision of public services such as education,
the provision of social welfare and the regulation of working conditions’ (Jones 2002,
169).7 Thus, when making decisions about employment, the state cannot act with the
same freedom as a partner in a private firm. Rather, the state is constrained and must
act as ‘the collective person obliged by the right to operate a public service, and able
to use his authority to ensure the functioning of public services’ (Jones 2002, 170).8
Duguit argued further:
…the State, because it is the State, is responsible for the functioning of the public services…to
ensure the accomplishment of certain tasks that vitally affect the essential interests of the
community, it is the State employing its power to ensure the functioning of these services.
And that is why, when he names the agents necessary for their functioning, as well as when
it regulates the operation, it makes a unilateral act or act of authority (Jones 2002, 170).9
claim in some schools, there is an irremediable opposition between those who hold wealth, and
those who don’t, between the owner-class and the proletarian class, the latter needing to expropriate
and soon annihilate the former. But I cannot nonetheless restrain myself from saying that according
to me these schools have completely erroneous version of things: the structure of modern societies
is much more complex. In France, notably, a large number of persons are both owners and worker.
It is a crime to preach the struggle between classes, and I think we are walking not towards the
annihilation of one class by another, but to the contrary towards a regime of coordination and
a process of creating hierarchy of classes.’ See also Duguit’s debate with Proudhon about trade
unionism and his hostility to public service strikes (Jones 2002, 167–168).
5 Translation my own.
7 This perspective also led Duguit to oppose unionism and strike actions in the public service: ‘The
rulers have a compulsory mission to which they cannot avoid…Since this mission is obligatory,
institutions by them cannot strike or unionize’ (Jones 2002, 169–170 [translation my own]).
Consistent with this general perspective, Duguit argued that laws that govern
human behaviour should be determined by ‘a goal of social solidarity’ (Jones 2002,
172).10 This is the foundation for his discussion on property but it also applied to
other areas of law that are commonly characterised as “private law”. For example,
Duguit critiqued theories of contract that postulated a free exchange between two
independent wills on the basis that they were out of step with the ‘socialist and
associational tendencies of our time’ (Jones 2002, 171).11 In his formulation, the
‘[i]ndividual will expressed in a contract…has legal value only when it is determined
by a goal of solidarity’ (Jones 2002, 171).12 Put another way, contracts have a ‘social
function’ and that to determine whether an agreement gains legal protection one
must inquire ‘whether it pursues a goal which is in conformity with the prevailing
understanding of social solidarity’ (Jones 2002, 171). This perspective collapses
categories of private/public law (Jones 2002, 172)13 and subordinate’s individual
will to the goal or purpose of the law in question. To be more concrete, Duguit
described collective labour contracts as an act that ‘establishes a permanent rule to
be imposed on those who in the future make individual contracts’ (Jones 2002, 171).
He also argued that the most important clauses in utility contracts were those clauses
related to how the agreement impacted employees (work safety, pay, pensions) or
the public (prices, reliability).
Thus, rather than interpreting legal relations in an individualist way that high-
lighted conflict, Duguit argued that people are ‘part are part of a social group and
even of the whole of humanity’ (Jones 2002, 179).14 This means that they are ‘sub-
ject to a rule of conduct which is imposed on them’ (Jones 2002, 179).15 Put another
way, people are obligated to follow social rules because we are born and live in a
sociality with others. Violation of this fact would provoke ‘a social reaction’ while
living in conformity with social obligations promotes the common good and legiti-
mates legal rules (Jones 2002, 179).16 We turn now to consider how Duguit applied
this foundation to his concept of property.
15.2 Social Obligations in Property
[P]roperty is not a right; it is a social function (Duguit quoted in Mirow 2010, 208).
As noted in the introduction to this book, Duguit’s most important contribution

to property scholarship was his introduction of the ‘social function’ or ‘social obli-
13 Jones notes: ‘Duguit sought to reconstruct private law on the public model, which explains why
his ideas provoked most controversy when he turned his attention to private law.’.
gation’ norm. It is immediately tempting to compare Duguit’s theory of property

to modern day communitarian (Harris 1996, 102–104, 115–118) or social relations
theorists (Cohen 1954; Hale 1923, 1943; Kennedy 1991; Singer 1982, 1992; Singer
and Beerman 1993; Nedelsky 1990, 2013). Clear similarities exist, and our under-
standing of individuals as embedded in a social context (increasingly an ecological
context Freyfogle 2003; Burdon 2014; see also Bosselmann and Taylor 2017; Grin-
linton and Taylor 2011) has only increased. Yet, one must be careful not to overstate
the relationship or suggest that Duguit’s theory is equivalent to more contemporary
theories of property. To do so would risk misrepresenting the specificity of Duguit’s
theory and it might also overestimate his influence on subsequent thinking which has
frequently derived from distinct cultural and social circumstances. So, what then are
the specific characteristics of Duguit’s social obligation norm?
To begin, Duguit’s description of property should be distinguished from Black-
stone’s dictum that property is ‘that sole and despotic dominion which one man
claims and exercises over the external things of the world, in total exclusion of the
right of any other individual in the universe’ (Mirow 2010, 192; Blackstone 1979,
2). Blackstone, of course, was not trying to make an empirical claim and he recorded
in his treatise multiple instances where regulations limited the choice of property
owners.17 However, Blackstone’s starting point was individual freedom and he pro-
moted a concept of property that promoted individual preference satisfaction.18 In
contrast to this view and consistent with his description of the state, Duguit posi-
tioned the individual as embedded in society and described property in a way that
contains inherent moral obligations and duties. Put another way, private property is
about more than the individual desires of the property owner. It is a social institution
and owners have an objective obligation to ‘use the wealth [they] possess to maintain
and increase this social interdependence’ (Duguit [trans: Viven-Wilksch] 2019, 45).
The nature of this obligation varies depending on the object of property. Thus, the
owner of an estate has an obligation against waste while a landlord has an obligation
not to charge exorbitant rent. Duguit offers other examples: ‘I cannot legally build
a screen on my land, a false chimney on the roof of my house or excavate in my
garden, because then I do things that are of no utility to me and that do not fulfil the
social independence at all’ (Duguit [trans: Viven-Wilksch] 2019, 51).19
For Duguit these obligations are greater than moral demands. He claimed that
property relations will ‘only be socially protected’ if the social obligation is met
(Duguit [trans: Viven-Wilksch] 2019, 45). However, Duguit offers very little guid-
ance on what will happen to owners who contravene the social obligation norm. In
part this is because he thought that absolutist conceptions of property were disap-
pearing. Where individual preference satisfaction remains the norm, he noted that
17 On the relationship between choice and private property see: Babie (2011).
18 This perspective has been enormously influential and its focus on individual preference satisfaction
found a champion in liberal and neoliberal capitalism. While not trying to position Blackstone as
the ultimate source of contemporary thinking, his description of property as dominion is widely
held in society today. See Babie et al. (2018).
19 For more examples see Mirow (2010, 208).
affected members of society would suffer repression and might be compensated

(Duguit [trans: Viven-Wilksch] 2019, 51). Unfortunately, very little further guidance
is given on this point. However, it is important to underline that even as Duguit
thought that society was shifting toward a conception of property that recognised
social independence he also recognised continued tension between the individual
and the community. He summarised his thinking on this point as follows:
The owner has the duty and therefore the power to use the thing he holds to the satisfaction
of individual needs, and especially of his own, to use the thing to the development of his
physical, intellectual and moral activity. Let us not forget indeed that the intensity of division
of social labour is the direct reason for the individual activity.
The owner has the duty and therefore the power to use his thing to the satisfaction of collective
needs, the needs of a national community as a whole or of secondary communities. (Duguit
[trans: Viven-Wilksch] 2019, 51).
With respect to this second point, Duguit elaborates by noting that he is concerned
with the legal interests of a diffuse community. This forces our attention toward ‘the
autonomy of any collective estate constituted by individuals, or, in other words, to
recognise the liberty of association and the liberty of foundation’ (Duguit [trans:
Viven-Wilksch] 2019, 55). This is a vision of freedom that understands our actions
and potentialities as socially conditioned. Moreover, it is important to reiterate that
Duguit is not proposing an abstract theory of property—his description of the social
obligations norm is based on ‘social observation’ or what he has identified in the
‘evolution of legal ideas’ in Europe (Duguit [trans: Viven-Wilksch] 2019, 59).
15.3 Social Obligations Under Neoliberalism
As mentioned in the introduction, Duguit’s description of property directly influenced

legal systems in Europe and South America and developed in parallel to social
relations theories of property in North America. However, while Duguit sought to
describe the evolution of legal systems, most contemporary statements on social
property are either conceptual or directed toward describing an ideal concept of
property. The latter task has grown more urgent in recent decades in response to
the environmental crisis and has caused scholars to generate a better understand of
the relationship between property and types of environmental harm (see, e.g., Cole
2002; Babie 2011; Graham 2011) and advocate for a green or ecocentric concept of
property (Burdon 2014).
Moreover, while Duguit sought to present an empirical and objective description
of property which is based on social observation, his writing is also marked by
a progressive posture toward social evolution. This is the idea that as society is
evolving technologically, it is also advancing socially, morally and institutionally. For
evidence of this point, consider the way Duguit compares the stages of development
between France and Argentina: ‘Perhaps I could characterize the stage in which
you still are by saying that it is the stage of property-speculation, but that will be
followed by a period that may not be too far from the stage of property-function, the
evolution of societies and particularly Latin societies having reached a similar degree
of civilization’ (Duguit [trans: Viven-Wilksch] 2019, 39). Sentiments like this were
common in Europe prior to the first world war20 and so was the belief that European
culture represented the best of civilizational progress. Stephan Zweig captures this
idea in his reflections on Europe at the close of the 19th century:
Earlier years, with their wars, famines, and revolts were depreciated as times when mankind
was still immature and unenlightened. But now it was merely a matter of decades until the
last vestige of evil and violence would finally be conquered, and this faith in uninterrupted
and irresistible “progress” truly had the force of a religion for that generation. One began to
believe more in this “progress” than in the bible, and its gospel appeared ultimate because
of the daily new wonders of science and technology…this century stunned itself in its own
accomplishments and looked upon each completed decade as the prelude to a better one
(Zweig 2013, 14–15).
Two world wars erased this perspective on social evolution, causing Elliot to write:
‘I think we are in rats’ alley, Where the dead men lost their bones’ (Elliot 2013, 63).
Moreover, while one can identify instances of the social obligation norm in law today
(Bonilla 2011; Cunha 2011), nobody would confidently assert that property relations
were progressing toward a greater concern for community or the common good. At
best, the social obligation norm exists as an aspiration. There is also a growing body
of research that demonstrates empirically that everyday people tend to view property
in individualized and absolutist terms.21
Today most lawyers would recognise that property is an indeterminate concept
that is shaped by the social, political, and economic forces from within which it has
been created. Contra Duguit, property does not evolve in stages—it is shaped. Today
the legal-philosophical concept of property, the institution of property and people’s
lay understanding of property have all been influenced by neoliberalism which is the
dominant political ideology and common sense principle of our time.
Before we explore the influence that neoliberalism has had on property and social
obligation norm it must first be noted that the term’s meaning is subject to diverse
interpretations. As Elizabeth Humphrys has noted: ‘In the hands of various authors it
can refer to: (1) a doctrine, set of ideas and/or ideology; (2) a set of economic policies,
an entire economic regime and/or a distinct phase of capitalism; (3) a political project,
form of political rule and/or type of state; (4) a category of denunciation or criticism;
and (5) a complex mix of some or all of these elements’ (Humphrys 2015, 70–71).
To this already exhausting list we should also add those who theorize neoliberalism
as a kind of rationality or way of seeing the world that is integral to subject formation
(Brown 2017; Foucault 2010).
Despite the various descriptions of neoliberalism one can discern a dominant
understanding in the academic literature. This narrative contains the following ele-
ments: first, most accounts situate the beginning of neoliberalism with reference
to the rise of the New Right governments of Thatcher in the UK or Reagan in the
20 Duguit adopted this from Durkheim. For more on Durkheim see Hinkle (1976).
21 See Babie et al. (2018).
United States; second, neoliberal policies are said to spread from these origins and
are exported around the world; third, while social democratic parties and labour
movements do not initiate neoliberal policies, they follow the direction opened by
the New Right; and fourth coercive state action has been required to implement
neoliberal reforms—this has included political coup22 and dictatorship, weakening
the power of trade unions through direct confrontations, structural adjustment facil-
itated through the IMF and World Bank in the Global South and the use of crisis to
implement reforms (Humphrys 2015, 72).23 Each aspect of this dominant narrative
has impacted our understanding of property and eroded the social bonds through
which a more communal or social understanding of law and policy exist. To bor-
row from Thatcher ‘There’s no such thing as society. There are individual men and
women and their families’ (Thatcher 2013).
Commenting further on this description, David Harvey argues that neoliberalism
was expanded not just by force but also through the ‘construction of consent’ (Harvey
2005, 39–63). This includes electoral politics but was catalysed through industrial
disputes that were used to discipline organised labour and dramatically reorganise the
social sphere. A key example from the United States occurred in 1981 when Regan
crushed the Professional Air Traffic Controllers Organization union by firing 11,359
striking workers and prosecuted their union leaders (Harvey 2005, 25, 59; Humphrys
2015, 74). In a similar way, Thatcher defeated a yearlong strike by the National Union
of Mineworkers after she announced massive redundancies and pit closures (Harvey
2005, 59). Once the house of labour had fallen there was no organised resistance
to neoliberal reform. Moreover, while social democratic parties might rhetorically
oppose neoliberalism and still use the language of social solidarity, in practice they
have not been able to change direction:
[The] genius was to create a legacy and a tradition that tangled subsequent politicians in a web
of constraints from which they could not easily escape. Those who followed, like Clinton
and Blair, could do little more than continue the good work of neoliberalism, whether they
liked it or not (Harvey 2005, 63).
Alongside this one should also consider the work of Peck, Theodore, Tickell and
Brenner who theorise neoliberalism as a process which does not have a ‘paradigmatic
ground zero’ (Peck et al. 2010, 104).24 For this reason, the authors prefer the term
‘neoliberalisation’ because it places emphasis on process which does not have a fixed
end. Rather, the authors argue that neoliberalisation:
…should be conceived as [a] hegemonic restructuring ethos, as a dominant pattern of (incom-
plete and contradictory) regulatory transformations, and not as a fully coherent system of
typological state form. As such, it necessarily operates among its others, in environments or
multiplex, heterogeneous and contradictory governance (Peck et al. 2010, 104).
22 For discussion of Chili see Klein (2008, 98–115). See also Peck et al. (2009, 49–66).
23 Note that Humphrys directly challenges part of this narrative by positioning the Labor Part in
Australia as the key driver of neoliberalism.
24 Although Humphrys also points out different instances where the authors repeat the US/UK origin
story described above (Humphrys 2015, 778).

Another emerging idea which is of vital importance to our discussion of social

obligations is the way neoliberalism has reshaped not only social and economic
structures, but also a kind of political rationality. In her exploration of neoliberal-
ism, Wendy Brown focuses on the effect this nebulous term has on politics (Brown
2017, 20). Brown assesses neoliberalism in respect to democracy, highlighting the
relationship between democracy’s erosion with neoliberalism’s development; iden-
tifying the ‘economization’ of subjects through neoliberal rationality (Brown 2017,
33). Brown posits that neoliberalism is a ‘distinctive mode of reason … a scheme
of valuation’ (Brown 2017, 21) that replaces other values with an economic frame-
work. The result of this shaping is presented in the author’s interpretation of the term
homo oeconomicus, the economic man. Brown identifies this new reading of homo
oeconomicus as a direct result of neoliberalism’s economization (Brown 2017, 33),
arguing that it effects the individual as value driven in ‘all domains of life’ (Brown
2017, 33). Politically, Brown argues that neoliberalism and its economization gov-
ern as ‘sophisticated common sense’ (Brown 2017, 35) all the while ‘remaking …
institutions and human beings’ (Brown 2017, 35). Brown argues that under the guise
of common sense, homo oeconomicus is now so normalised and expected, that it is
erasing competing constructs, such as the liberal democratic concept of homo politi-
cus, the political man (Brown 2017, 35). Brown’s observation as an example of homo
oeconomicus’ dominance and the likely end of the political man, heralds ‘enormous
consequences for democratic institutions, cultures, and imaginaries’ (Brown 2017,
33).
In the first instance, the idea of economization is reflective of earlier economic
ideas spanning liberal, classical, and neoclassical economic thought (Brown 2017,
33, 49). This familiarity, Brown argues, is deliberate, ensuring that the ‘remaking’
(Brown 2017, 35) process is non-confrontational whilst simultaneously mystifying
the identification of neoliberal effects. The impact of these mystified effects can be
seen in rise of homo oeconomicus, humans as economic actors in all spheres of life
(Brown 2017, 35). This rise has been achieved via the neoliberal usurpation of insti-
tutions and cultures, rather than the creation of wholly new institutions and cultures,
leaving neoliberalism often ‘impossible to grasp’ (Brown 2017, 49). Brown tackles
this impossibility, however, by highlighting that homo oeconomicus and neoliberal-
ism as the results of economization, are not static terms (Brown 2017, 33). Instead,
whilst homo oeconomicus has existed in the work of Adam Smith, Jeremy Bentham,
and the Chicago School, it has not denoted the same thing throughout these peri-
ods. Instead homo oeconomicus should be read as an adaptive term, which in its
current incarnation means ‘we are everywhere homo oeconomicus and only homo
oeconomicus’ (Brown 2017, 33). This totalising interpretation to homo oeconomicus,
is understood when, with some caveats, Brown likens the spread of neoliberalism
to that of termites; boring into existing structures and transforming them slowly
over time (Brown 2017, 36). She highlights how this understanding of neoliberal
economization has transformed seemingly static structures:
both persons and states are construed on the model of the contemporary firm, both persons
and states are expected to comport themselves in ways that maximize their capital value
in the present and enhance their future value, and both persons and states do so through
practices of entrepreneurialism, self-investment, and/or attracting investors (Brown 2017,

22).
Brown identifies the economization of person and state to demonstrate the

transformation and conflation they have suffered through neoliberalisation. Brown
chooses these immensely broad subject areas to show how nested and embedded
contemporary neoliberalism is within all facets of day-to-day life. This embedded
nature of neoliberalism and the dominance of homo oeconomicus ensures economised
actions and interactions are not only normalised, but expected. A significant result
of the transformed nature of existing terms, institutions, and structures, is the chal-
lenge for interactions with any pre-neoliberal concept which itself is not directly
economised. Of relevance here is Duguit’s concept of social obligations, which fall
into the pre-neoliberal categorisation. Whilst Duguit explicitly discusses economics
in relation to property and social obligations, they are not economised in the neolib-
eral sense. As such, the question turns to whether social obligations can be adapted
or applied under neoliberalism?
As we introduced earlier in this chapter, it was in his Sixth Lecture that Duguit
hones his concept of social obligations in regard to property and property law (Duguit
[trans: Viven-Wilksch] 2019). Focusing on the ‘social institution’ Duguit addresses
property’s need to meet individual and community goals, the protection of these
goals, and the suppression of acts that move against them (Duguit [trans: Viven-
Wilksch] 2019, 39).Through his explanation of this theory, Duguit outlines three key
actors: the individual as the property owner, the social as the property benefactor, and
the state as the property regulator (Duguit [trans: Viven-Wilksch] 2019, 39).Whilst
not engaging directly with Duguit, Brown does identify that in Michel Foucault’s
reading of neoliberalism there has been a transformation of ‘the social, the state, and
the subject’ (Brown 2017, 56). Knowing these areas for Duguit’s key actors have
arguably been transformed, leads to the question of whether homo oeconomicus could
be subjected to Duguit’s social obligations or if their economised nature leaves them
too far removed from Duguit’s original application.
Given the transformative nature of neoliberalism it is fair to read Brown’s homo
oeconomicus as incompatible with Duguit’s social obligations. Brown returns to the
concept of the “social” and its place within this neoliberal era:
neoliberal rationality’s economization of the political, its jettisoning of the very idea of the
social, and its displacement of politics by governance diminish significant venues for active
citizenship and the meaning of citizenship itself (Brown 2017, 210).
It is not too much of a leap to read Duguit’s social obligations as a form of

active citizenship, leading to an apparent impasse for Duguit’s social obligations in a
general sense. Following Brown’s argument on the neoliberal relationship of citizen
and state, there is a clear disconnect with the social obligations articulated by Duguit.
For example, taking Duguit’s statement that ‘[p]roperty is no longer the subjective
right of the owner, it is the social function of the holder of this wealth’ (Duguit [trans:
Viven-Wilksch] 2019, 45) and applying it to the contemporary homo oeconomicus
would be not only incompatible but not even considered unless the social function
provided an economised benefit. In some ways neoliberalism has done this with the
rise of the ‘Gig Economy’ and property specific endeavours such as Airbnb (see
generally Morgan and Nelligan 2018).
However, this bastardisation of social obligations is then just another termite
shaped concept suffering from neoliberalisation. Critically reading Brown’s state-
ment on active citizenship, it is possible to see potential for Duguit’s social obli-
gations. As she states, significant venues for active citizenship are diminished, but
they are not completely gone (Brown 2017, 210).If the expectation was to implement
Duguit’s social obligations as if nothing had changed since the Third Republic, as
if the social and political structures were still in place, they would likely fail. This
failure could manifest as either an immediate non-starter, or if value could be seen, an
economised adaptation. If, however, these social obligations are positioned in rela-
tion to new avenues for application, then there is a possibility of their implementation
and development.
15.4 Public Things and Social Obligations
In the previous section, we argued that neoliberalism has eroded the social and polit-
ical structures through which social obligations might be sustained and protected.
This includes the privatization of public goods and the weakening of trade unions.
Further, according to Brown neoliberal rationality constructs us everywhere and at all
times as homo oeconomicus or economic man. Subjects formed under neoliberalism
are unfree in new ways because they are unable to conceptualise values in a way
that is free from the trappings of economization and instrumental rationality. This
description of neoliberalism lends itself to a totalising analysis which forecloses the
possibility that social obligations could form a genuine part of property law in the
future. Indeed, how can we communicate ethical demands or advocate obligations
when our society thinks in instrumental terms and notions of community are only
legible when framed in terms of economic growth or national competitiveness? As
Bonnie Honig observes, ‘it is difficult to understand where resistance could come
from and how a politics of alternative movements could take hold’ (Honig 2017,
19–20).
In response to this reading of neoliberalism it should first be noted that Brown
herself does not theorise neoliberalism in a totalising way (although her book is
weighted heavily in this direction). For example, Brown notes that subjects are formed
in response to a variety of different social and economic circumstances. She also
briefly notes that countering the ‘civilization of despair’ is the ‘work [that] could
afford the slightest hope for a just, sustainable and habitable future’ (Brown 2017,
222). In agreement theorists like Alain Touraine argue that totalising theories cannot
account for the many instances where individuals gather to prefigure deep notions of
community and social solidarity (Touraine 2002, 388). Interestingly, Honig argues
that many acts of resistance to neoliberalism coalesce around what she calls ‘public
things’ (Honig 2017). While Honig does not define the term (Honig 2017, 4) it is clear
from her examples that she is often thinking about public and communal property.
For example, Honig highlights cases such as the nationalisation of power in Quebec
(Honig 2017, 3), the democratic design of central park (Honig 2017, 15–16), the
industrialization of agriculture by corporations such as Monsanto (Honig 2017, 20)
and efforts to protect the land and communities from oil and gas pipelines in British
Columbia (Honig 2017, 22–24). Such examples are divisive and yet Honig contends
that they ‘provide a basis around which to organise, context, mobilize, defend or
reimagine various modes of collective being together in a democracy’ (Honig 2017,
24).
Alongside the examples noted by Honig we might add Joseph William Singer’s
examination of how religious traditions uphold obligations as an inherent factor in
public and private property (Singer 2000, 38–62). Moreover, Elinor Ostrom won
the noble prize for economics for her analysis of economic governance and demon-
strating that communities can govern common property resources with a sense of
obligation and commitment to the collective (Ostrom 1990). Finally, Nicole Graham
provides examples of pastoralists and traditional owners who adopt ecological and
social obligations over land in the Northern Territory of Australia (Graham 2011,
190–197).25 What these and other examples demonstrate is that neoliberal rationality
has not spread everywhere and public things can provide a space for individuals and
communities to adopt a set of property relations that recognise social obligations.
Some readers might find it strange to place such emphasis on the importance of
public things to reinvigorate a concern for social obligations. While neoliberalism
might not be totalising, it is certainly dominant and public property is increasingly
being sold and privatised. For example, in 2017 Brett Newman, the CEO of property
NSW, estimated: “Over the last six years…approximately $9.14 billion of real prop-
erty assets have been recycled [sold or leased] by government agencies…” (Robertson
2017; Voyce 2003). Moreover, James Robertson reported that “[a]nother $1 billion
in sales is forecast [in NSW] for the coming three years…” (Robertson 2017). This
pattern is being repeated around the world (Garrett 2015; Punter 1990). At yet, per-
haps it is precisely at this juncture—when neoliberal rationality is dominant and
privatization is spreading—that we need to return to public things and revitalise their
potential to constitute us as socially embodied subjects with obligations to others.
This is certainly Honing’s position. She argues: ‘…perhaps it is useful to think about
public things now precisely because it is not quite too late to defend those we still
have, to render them more fully accessible and egalitarian, and to generate or promote
new ones if we can appreciate their constitutive necessity to democratic life and act
in concert to secure them’ (Honig 2017, 15).
Public things can incite people to act in concert with each other and shift our
attention away from people and toward objects, infrastructure, places and the natural
25 While the land is held under a pastoral lease it is non exclusive and exists alongside native
title claims. At 193 Graham describes one perspective on social and ecological obligation: “What is
radical about Purvis’ farming practice is that rather than regarding land as the non-specific thing and
rather than ‘battling’ the land, Purvis transformed his relationship to the land as one of reciprocity and
developing knowledge.” See also Sinatra and Murphy (1999). On the notion of adapting practices
to the land see Jackson and Berry (1985) and Jackson (2011). For an excellent survey of Australian
first nations ideas of stewardship and obligation see Weir (2009).
world (Honig 2017, 25). Those of us seeking to revive a conversation about social
obligations would do well do devote our time and energy to the defence of public
things and establishing new ones which are open, democratic and committed to deep
notions of liberation and emancipation.
15.5 Conclusion
Within this paper, we have drawn specifically on the social obligation norm, itself
derived from Duguit’s broader analysis on the nature and function of the state. We
have argued that the social function norm does offer a valid perspective on contempo-
rary social property, but that it is limited under neoliberalism’s individualistic focus.
By first positioning Duguit in a broader context, amongst his contemporaries, such
as Durkheim, a critical reading of the social obligation norm was undertaken. In turn
this reading demonstrated that Duguit theorised property in evolutionary terms and
becoming more social as it evolved through stages. This reading of Duguit high-
lights a tension with his vision and use of social obligations under neoliberalism.
Here we drew on Wendy Brown and her argument that the current state of neolib-
eralism, specifically focusing on her assessment of homo oeconomicus. This focus
provided the grounds necessary to deal with the individualistic rights promulgated
under neoliberalism, and how they significantly limit the application of the social
obligation norm.
However, while neoliberalism is the governing rationality today that does not
mean that social obligations must be discarded or that we cannot defend and expand
the social function of property. In fact, Bonnie Honig reminds us that neoliberalism is
not a totalising theory and that human subjects still have the ability to resist and shape
aspects of our world. With respect to property, deep notions of social obligations are
being expressed whenever a group of people work together to defend public things,
such as land or resources. It is through these material acts that we might breathe life
back into Duguit’s understanding of the social function of property and expand his
thinking to make it relevant to the myriad of problems we face today.
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Chapter 16
Between Custom and Colony:
Social-Norm Based Property Law
in South Africa’s Post-constitutional
“no-Man’s Land”
Hanri Mostert with Cheri-Leigh Young
Abstract Despite different historical influences, the social norm as articulated by

Duguit found its way into the South African legal system and is now a permanent
feature of South African property law. The reason for this can be found in the con-
stitutional reform of the late twentieth century in South Africa. The constitutional
property clause protects private holdings while simultaneously imposes obligations
on the state for ensuring transformation of the historically unjust system of resource
distribution. This essay questions the applicability of the norm in a jurisdiction where
more than half of the constituents are formally classified as poor. The essay uses the
student protests of recent years to contextualise the need to rethink the way prop-
erty law can serve the South African society. The argument is for development of a
property law which allows the traumatised population of South Africa to combine
its distinctive capabilities of humanity (as expressed in the Constitutional norm of
Ubuntu) and entrepreneurship to reach into the aspects of modern living in South
Africa where the “evil triplets” of poverty, inequality and unemployment can be
addressed. The guidance for such development is already locked into the Consti-
tution. However, in considering elements of the compassionate and entrepeneurial
property law already present in the system, it is clear that a partnership between an
engaged citizenry and an enabling state is needed.
Keywords Property · Social norm · Decolonising law curriculum · Resource

management · African landholding · Legal reception · African and European
relations · “Evil triplets” · Poverty · Ubuntu · Entrepeneurship
H. Mostert (B) · C.-L. Young

University of Cape Town, Cape Town, South Africa
e-mail: Hanri.Mostert@uct.ac.za
C.-L. Young
e-mail: mlia@uct.ac.za

372 H. Mostert and C.-L. Young
16.1 Introduction
The social norm of property law may have been a novel idea when Léon Duguit
engaged with it during his seminal lecture series in Buenos Aires. The norm may
have enjoyed subsequent widespread acceptance in continental Europe, after World
War II. It may be even more fascinating now, with the ongoing engagement of schol-
ars, especially from the Progressive Property movement (Alexander et al. 2009;
Alexander 2009, 2018; Alexander and Peñalver 2012; Peñalver 2009; Singer 2000;
Underkuffler 2003). But what does it have to do with South Africa?
When Duguit presented his sixth lecture—the one that forms the backbone of
this book—to a select Argentine audience in 1911, he proposed that property law
acknowledged two basic premises: that the legal construct of property exists, first, to
enable the meeting of the individual needs of the owner for the “development of his
physical, intellectual and moral activity” (Duguit 1912); and second, to oblige the
owner “to use his thing to the satisfaction of collective needs, the needs of a national
community as a whole or of secondary communities” (Duguit 1912). Duguit’s first
proposition mirrors the reality of legal practice and the theory of property law of
the early twentieth century in South Africa: an owner is free to do with his property
what serves him1 best, within the limits of the law. The second proposition, which
expresses the social norm, that an owner is responsible to exercise his rights in a
way that serves society, is harder to trace. Probably the closest form of expression is
found in the law of nuisance,2 but even that development occurred, only, at a point
in time where South African history had already moved on from its own important
moment that coincided with the time of the Buenos Aires lectures.
Were Duguit to have given his lecture in South Africa in 1911, he would have
found it more difficult to latch on to real-life examples. In fairness, the beginning
of the twentieth century was an important growth point for South African law—
its society emerging from the devastation of its own experiences with colonialism.
The discovery of mineral wealth triggered the South African War (a.k.a. the “Sec-
1 The overwhelming patriarchal character of society at the beginning of the twentieth century makes
the masculine the appropriate form here. See Van der Walt 1995a, 341–342, in which Van der Walt,
drawing on feminist theory, raises the possibility as to whether the “traditional, hierarchical system
of property rights should (or can) be regarded as a typically male structure”. See also Smith 2009,
2, in which she identifies the freedom of testation that has prevailed in South African law as one
of the tools “for the exclusion of women from the ownership and control of wealth”. For the sake
of simplicity the rest of the essay alternates the forms of the pronoun, rather than attempting a
convoluted gender neutral formulation. Reference to one gender must be assumed to incorporate
the other.
2 As one of the earliest expression of the social norm, Kirsh v Pincus 1927 TPD 199 engaged with
the reasonableness of the exercise of ownership rights as well as the reasonableness of expectations
upon those affected to tolerate inroads into their interests. It has been taken to embody the “live
and let live” principle. Much later, in Assagay Quaries (Pty) Ltd v Hobbs 1960 (4) SA 237 (N), the
court stated that, with respect to the law of nuisance, the “homely phrases ‘give and take’, ‘live and
let live’ are much nearer the truth than the Latin maxim sic utere tuo ut alienum non laedas” (which
translates to mean that one may use one’s property in manner that does not cause harm to another).
See Church and Church 2016, [172, 174].
16 Between Custom and Colony: Social-Norm Based Property Law … 373
ond Anglo-Boer War”).3 In its aftermath, the region shifted from a posse of col-
onized and annexed territories to independent rule,4 an important step to ultimate
state sovereignty (Thompson 2014, Chap. 6; Davenport and Saunders 2000, Chaps.
14–15). Around the same time that Duguit articulated his ideas about the social func-
tion of property so eloquently, the Union of South Africa5 was formed (1910).6 Its
main purpose was to promote capitalist industrialization for the sake of the mining
industry (Marks and Trapido 1979, 52), and this was meant to serve the “interests of
imperial ends”.7
What the South African War had done to the impoverishment of the agrarian
Afrikaner population (among others),8 the formation of the Union did to the dispos-
session, disenfranchisement and proletarianization of the black population in South
Africa (Thompson 2014, Chap. 4; Davenport and Saunders 2000, pt 2). It triggered
a wave of rapid urbanization; and the social, political and economic events that
unfolded left South Africa with a complicated and inherently unfair social structure
in terms of which resource distribution was heavily reliant on race and class cate-
gorisations (Davenport and Saunders 2000, Chaps. 9–13; Thompson 2014, Chaps.
4–5; Feinstein 2005, Chaps. 2–6). These events had a lasting effect on the demogra-
phy and quality of life in the region, as it intensified competition for already scarce
resources. They also initiated the growth of the legal system that, still today, forms
the backbone of our society,9 many trials and tribulations later.
Yet, today, the incorporation and prevalence of the social norm in South African
property law is practically taken for granted. Gregory Alexander, one of the main
proponents of the Progressive Property movement, had engaged with the social norm
thoroughly, using South African property law as one of his metaphorical croplands
(Alexander 2006, Chap. 4; Alexander 2009, 782–791, Alexander 2018, 215). André
van der Walt had advocated the development of the social norm in property law all the
3 For a detailed overview of the War and its aftermath, see Giliomee 2009, 228–314; Davenport and
Saunders 2000.
4 The formation of the Union of South Africa bundled the defeated “Boer” republics and the colonies
of the victorious British Empire into a single political entity, as a self-governing, autonomous
dominion of the British Empire. See Thompson 2014, Chaps. 4–5; Davenport and Saunders 2000,
Chaps. 9–10.
5 The Union comprised the erstwhile two “Boer” republics of the ZAR (Zuid-Afrikaanse Republiek,
after its dissolution at the end of the Anglo-Boer War, it was known as the Transvaal colony) and
the Orange Free State, alongside two English colonies at the Cape of Good Hope and Natal. For a
general history, see Davenport and Saunders 2000, 5–9.
6 31 May 1910.
7 ‘Imperial goals are determined by the interests of imperial ends: in the case of southern Africa,
there was no intention to change the property relations already existing in the region, though the
(Boer) war and the reconstruction which followed it were intended to transform the nature of the
class structure of the territory by hastening the development of a capitalist state, which would be
more fully capable of fulfilling the demands of the mining industry’ (Marks and Trapido 1979, 52).
8 The violence of the war left the people of South Africa impoverished, and one of the main sources of
income—agriculture—defunct. The British Army’s Scorched Earth policy left exiles and prisoners
destitute, unable to return to or work their farms (Giliomee 2009, 320–323).
9 See Sect. 16.2.2 below.
way through his formidable body of work (Van der Walt 2004, 2005, 2006a, 2008,
2009, 2010, 2011, 2012; Viljoen 2015). The express acknowledgement of the social
norm had found its way into many recent South African text books and reference
works on property law (Mostert and Pope 2010, 116; Van der Walt 2010, 2011;
Pienaar 2014; Van der Walt and Pienaar 2016, 50–53; Viljoen 2016b; Van der Walt
2016) and with it also the curricula of most law schools. Most of the doctoral work on
property law over the past decade bows to the social norm as a given in property law
(Viljoen 2016a; Dhliwayo 2015; Van der Sidje 2015; Bezuidenhout 2015; Marais
2012; Muller 2011; Du Plessis 2009).
“So, what happened?” This would probably be the next question.
The introduction of a constitutional order, with a property clause which at once
protects private holdings and imposes obligations on the state for ensuring transfor-
mation of unjust systems, had a lot to do with that change. I engage with this a bit
further along in this essay. But the real interest, for me, lies in first, the vision of
that lecture of Duguit, and second, the very format in which Duguit’s vision was
expressed—as part of a lecture series. It is these two aspects I honour in this essay.
In adding a South African perspective to this collection, I reflect on this: what can
be taught, and what can be learned in developing a social-norm driven property law
in a country context such as mine?
16.2 Teaching Property Law in South Africa After

#RhodesMustFall
The question above is pertinent in the wake of the student protests of 2015-2017.10
The impetus was a bronze statue11 of the nineteenth-century British businessman,
mining magnate, and ardent colonialist, Cecil John Rhodes,12 pensively seated on
the University of Cape Town’s Upper Campus, staring out over the Cape Flats.13 The
10 For an account of the nature of the protests, see, e.g., Hotz v University of Cape Town 2017 2 SA
485 (SCA).
11 Sculptor: Marion Walgate. The statue was positioned prominently, forming part of the architectural
and landscape design of the upper campus since its unveiling in 1934.
12 Cecil John Rhodes (5 July 1853–26 March 1902) was a champion of the (unrealised) British
Imperial ideal of consolidated colonial sphere of influence, summarised in the phrase “from Cape
to Cairo”. As Prime Minister of the Cape Colony from 1890 onwards, the laws he implemented
were purposed to benefit mine and industry owners. Their effects included rapid industrial devel-
opment, and the loss of land (and the right to vote) by those black people who were landowners
at the time. He provided instrumental support for the infamous Jameson Raid, an attack on the
Transvaal, which was a catastrophic failure and led to the outbreak of both the Second Matabele
War and the Second (Anglo-)Boer War. The latter casts long shadows over the history of the South
African region. It profoundly and fundamentally affected the predominantly agrarian society of the
former Boer republics, through the devastation of both Boer and black African populations in the
concentration camps and through war and exile (Rotberg 1988; Sèrbe 2013).
13 Colloquially known as “The Flats”, this is the low-lying expanse southeast of Cape Town’s central
business district, housing tens of thousands of the metropole’s indigent. It is infamously and widely
statue unleashed a political storm when the student protest movement, #RhodesMust-
Fall, held it up as a symbol of continued oppression and the lack of racial transfor-
mation on campus (Nyamnjoh 2016). At first the protest was directed just at the
removal of this statue,14 but it sparked a flame across the country and, along with a
proliferation of similar hashtag initiatives, which later became labelled the “Fallist”
movement, protest spread to other universities, each containing its own monuments
symbolizing oppression, be they in stone, metal, or other less tangent forms.15 The
common denominator in these protests emerged as an attempt to achieve the “de-
colonization” of education in South Africa. Rapidly, the discourse trickled down to
faculty level,16 and even further down into specific subjects. Students participating in
the protest—and in the consciousness movements created by it—indicated that they
want to be taught about their own laws, not the laws of the colonisers (University of
Cape Town 2015). The cry by #DecoloniseUCTLaw, for instance, was that the Law
taught had to be revised to reflect African values and practices (Himonga and Diallo
2017).
Property law is a particular target for disgruntlement, as it is perceived by students
to be abstract, counterintuitive and difficult.17 Still, South African property law is
what it is. There is little point in justifying its current state here and now. Looking
backwards may bring understanding about why this is so. But the reasons are unin-
teresting for the “Born Frees”—the generation of young South Africans born after
Apartheid ended in 1994, and who are coming of age now.18 They have more pressing
described as “apartheid’s dumping ground”, the destination of many who were forcibly removed
from the city from the 1950s onwards, based on their skin colour (see, e.g., Cameron 2013, 40).
There is a particular irony in the stance of the (now removed) statue of Rhodes on UCT’s upper
campus if one remembers Rhodes’ most famous line: “Your hinterland is there.” It is the inscription
on another statue of his, in Cape Town’s Company’s Garden, standing this time, pointing north with
an outstretched arm, expressing the ideal of a total British dominance of Africa (see, e.g., Classen
2009; Mthembu-Salter 2013).
14 Controversial since the 1950s, when Afrikaner students called for its removal, the statue was at the
core of events of unrest and civil disobedience between March and April 2015, which kickstarted an
expedited attempt at engaging with issues of (especially racial) transformation on the UCT campus
(Martin 2017).
15 The targets on the different campuses varied: at the University of KwaZulu Natal it was a statue
of King George V that was vandalised; at Rhodes University in the Eastern Cape the very name of
the university was held up as offensive; while at Stellenbosch University in the Western Cape the
Afrikaans-medium teaching was the purported sign of oppression (John 2015; Roalf 2015).
16 For the UCT Law Faculty, the discussion morphed into the #DecoloniseUCTLaw movement.
17 This is my deduction, having taken heed of countless comments in course reviews at UCT between
2009 and 2015.

18 Rendering them roughly coincidental with the more global generation of millennials. The “Born
Frees” reportedly esteem democratic values, such as freedom, inclusion, equal rights and equal
treatment, but they also reportedly have very little tolerance across racial lines, based mainly on
their own perceptions of other race groups’ access to wealth, quality education, jobs and other
privileges. For an analysis, see Kotze 2016.
issues.19 Trying to engage with these issues often brings up feelings of hopelessness
and inadequacy, and an inability even to articulate our apprehensions about what is
facing us, the teachers of property law, who have to train this new, angry generation
of prospective law-reformers. We stand before our students, but we may not under-
stand them.20 The very core of our own education is challenged, and we are denuded
from our beliefs, our principles and our arguments.
In our classrooms and lecture halls, we need to mind at least the following: First,
we must acknowledge the irrevocability of our country’s past, and the trauma thereof,
specifically in relation to property law (16.2.1 below). Second, we must scrutinize
the truth of continued alignment of modern continental and common law principles
with South African law (16.2.2 below).
16.2.1 The Spectres of Colonization and Apartheid
One can begin to understand the discontent about the content of the property law
curriculum when one bears in mind that the history of our property law is interlinked
with the history of colonization and Apartheid: In South African law, the classifi-
cation of rights based on the ideas of De Groot, as digested by the Pandectists, still
forms the core of the law pertaining to ownership (Van der Walt 1992, 453–457).
At the time of reception, in the seventeenth century, Roman-Dutch law on owner-
ship and patrimonial rights emphasised the individual rationality and moral freedom
propounded by the institutional writers.21 Property was defined, not in terms of its
limitations and functions in society, and not in terms of obligations,22 but instead
by a focus on the individual’s powers in respect of objects (Van der Walt 1995b,
404). This particular feature accounts e.g. for the description of ownership as com-
prehensive and encompassing in our law (Van der Walt 1995b, 404–405; Van der
Walt 1995c, 18), which was embedded already in 1910, when the Union was formed.
19 Former University of the Free State Vice Chancellor, Jonathon Jansen, unpacked the words of
activist Malaika Mahlatsi, thus: “The older generation should stand back and shut up, and allow the
next generation to speak unimpeded and express anger unapologetically” (Jansen 2015).
20 I am relying here on my recollection of many conversations with colleagues, both informal and
more structured, especially during the annual meetings of the South African Property Law Teachers
group. In 2013 a joint presentation by myself and my colleague Anne Pope “Why Property Law
Is Branded A ‘Killer Course’: A Diagnostic” (2013 PLT Meeting, University of the Free State,
Bloemfontein) stimulated some of this discussion, and in 2016, my colleague Cheri-Leigh Young
and I again raised some of the issues about teaching property law after the introduction of the
#DecoloniseUCTLaw movement (2016 PLT Meeting, North West University, Potchefstroom). That
presentation sparked the idea for this essay.
21 E.g. in the works of Hugo de Groot and John Locke—see Hosten et al. 1995, 62–69. For present
purposes, the development of the ownership concept between the fourteenth and sixteenth century
will not be considered, because of limited scope. However, for a more detailed analysis, see Van
der Walt 1988, 309–324; also Van der Walt 1992, 452.
22 This shift from objectivism to subjectivism in legal thinking is described as “perhaps the biggest
philosophical revolution of post-medieval legal theory” (Van der Walt 1992, 452).
It downplayed other (feudal) property forms, instead supporting understandings of

property as a unitary concept,23 rather than a metaphorical bundle of sticks. Pandec-
tism is what transformed those initial conceptualisations24 into an elaborate, elegant
and consistent scientific system of subjective rights, and this is what had already
found its way into South African law at the beginning of the twentieth century (Van
der Walt 1992, 454). The Pandectists’ characteristically “historical” approach to law
created the impression of ownership as a universal, timeless, abstract and logical
concept. It was this notion that was adopted in South African property law schol-
arship, and was instrumental in maintaining Roman-Dutch elements of the mixed
legal system that developed in South Africa. This blend of Roman-Dutch Law á la
Pandectism informed interpretation of property law questions well into the twentieth
century (Van der Walt 1992, 454–455).25 However, this approach also covered up
the philosophical, social and political foundations of the modern concept of owner-
ship and rendered inaccessible the necessary, frank discourse on the social values,
philosophical perceptions and political manipulations underlying all legal disputes,
including those concerning property.26
In particular, the perseverance of the Roman-Dutch principles in South African law
during the twentieth century is linked to underlying political considerations, such as
the nationalist motive to rid the pure “civil”27 law in South Africa from English infil-
tration or “pollution” (Du Plessis 1998, 340). This reaction was fueled by the politi-
cal experience of the first half of the twentieth century:28 After the early, multiracial
mine strikes of the twentieth century, the Union Government implemented policies to
divide and rule over an increasingly discontent multiracial workers’ class (Davenport
and Saunders 2000, 280–283, 293–297, 636–644; Giliomee 2009, 337–343). Those
early policies of differentiation and discrimination ultimately achieved a separation
of white and black people within the worker class, affording systematic preference
to white people in the workplace (Giliomee 2009, 337–349; Davenport and Saunders
23 After the French revolution, this system of property rights was widely applicable (Van der Walt
1995b, 405).
24 Stemming from the work of Hugo de Groot and backed up by the philosophy of Immanuel Kant
(Hosten et al. 1995, 69–73).

25 Van der Walt points out that the most important characteristics of the South African law of property
as laid out in Van der Merwe’s first edition of Van der Merwe 1979 “reflect the spirit, framework
and content of the Dutch Asser Series … which was influenced by Pandectist terminology and
methodology”.
26 Closer analyses revealed grossly underplayed differences between actual classical Roman law
and the Pandectist versions thereof. This accounts for postmodern typifications of pandectism and
the contemporary versions thereof as “ahistorical” because of the disregard for the underlying and
surrounding circumstances of certain legal principles and institutions and their historical antecedents
(Van der Walt 1992, 454–455).
27 This description is, of course, erroneous. Cf. Zimmermann 1986, 265.
28 And particularly the experience of what would become the dominant demographic minority,
white Afrikaners. Severely impoverished and practically annihilated by their defeat in the South
African War, the remaining members of the Afrikaner cultural grouping had to find new livelihoods
among the ranks of oppressed and underpaid black workers around the budding mining metropoles
(Giliomee 2009, 323–349).
2000, 632–644). The divide eventually developed into concepts such as racial segre-
gation and later, Apartheid.29 It initiated the gradual social ascent of the Afrikaners,
to the point where they assumed political power, around the middle of the twentieth
century (Giliomee 2009, Chap. 14; Davenport and Saunders 2000, 369; Thompson
2014, Chap. 6). The Pandectist tradition resonated with the strong nationalist senti-
ments of the Afrikaner people,30 a remnant from their war experience, and directed
towards all things British.31
Apartheid is the ghost that haunts the South African psyche, our crippling National
Trauma, imposed by decades of dispossession and displacement, and concomitant
destruction of property and communities,32 by physical and psychological violence
inflicted on us all by an untrustworthy and undemocratic state that was, in turn,
responding to similar earlier treatment by colonialists. The individualist tendencies
in the Pandectist-shaped law received into South Africa were relied upon during
the Apartheid years to develop a system of property that had a strong exclusionary
streak (Van der Walt 1992, 454–455). The further addition of English law, combined
with racist policies on segregation established an exclusionary model of property
law (Van der Walt 1991, 22–25; Van der Walt 2009, 63–65), bolstering individual
property rights and entitlements, but excluding significant parts of the population
from accessing resources such as land and minerals (Van der Walt 1991, 22–25; Van
der Walt 2009, 63–65; Van der Schyff 2016, 1–5).
What must also be remembered, though, is that “law existed long before in the
area that came to be present-day South Africa” (Du Bois 2004, 9, 48–50).33 The
colonial and Apartheid experience wreaked havoc with indigenous systems of land
29 Apartheid’s most notorious pieces of segregationist legislation were the three Group Areas Acts
(Act 41 of 1950, Act 77 of 1957 and Act 36 of 1966). These motivated large-scale forced removals,
as they permitted the designation of areas for exclusive ownership and/or occupation on the basis of
race. There was no equality in the assigning of living spaces among different race groups (Robertson
1990, 124–126). For detailed historical analysis on the development of segregation and the imple-
mentation of apartheid, see Thompson 2014, Chaps. 5–6; Davenport and Saunders 2000, Chaps.
10–14.
30 For an overview of the growth of Afrikaner nationalism during the first half of the 20th Century,
see Davenport and Saunders 2000, Chaps. 10–13; Giliomee 2009, Chaps. 11–14.
31 As Giliomee notes, the War as well as the Great Trek became increasingly politicised with the
growth of Afrikaners nationalism (Giliomee 2009, 432–433). Particularly from the 1930s onwards,
the War was rediscovered by a new generation of Afrikaners, with an upsurge in books published
and articles written about the subject.
32 See, e.g., note 66 and 67 below for an account of the effect of forced removals on South African
society.
33 This is clearly recognised by the Constitution, which is now the supreme law of South Africa.
Section 211 requires courts to apply African customary law when and where it is applicable (Du
Bois 2004, 48–50). The Constitution itself is a product of South Africa’s history, which includes
colonialism and apartheid, and its negotiation was fiercely contested. The Preamble of the final
Constitution states that it seeks to “heal the divisions of the past and establish a society based on
democratic values, social justice and fundamental human rights”. See in general Klug 2010, Chaps.
1–3.
holding and governance.34 Communal tenure, regulated through custom, was thereby
reduced to a mechanism serving to entrench dispossession and land insecurity, often
in the wake of overtly racist colonial policies, such as terra nullius.35 Even the
very term “customary law” is problematic because of its link with colonial authority
(Kingwill 2011, 210). The problem originated with the particular brand of social
engineering by colonial governments and, later, the Apartheid regime. Colonialists
considered African landholding mechanisms to be “primitive” and inferior to their
own “civilised”36 understanding of property (Re Southern Rhodesia [1919] AC 211
(PC), 233–234; Chanock 1991b; Bennett 2004, 2008). This understanding motivated
colonial conquest of territories, and the “development” of indigenous populations.
Sometimes, indigenously held land was regarded “unowned”,37 which would then
lay it bare to annexation, often by violent means, and with concomitant displacement
of indigenous groups (Wirz and Eckert 2004).
The assumption that African landholding was primitive then “spawned two main
approaches to African land regulation” (Jacobs 2019). The one was to renounce,38
in an “assimilationist vein” (Jacobs 2019), African landholding mechanisms and its
related law,39 and force replacement thereof with colonial forms, skewed towards
the idea of individual ownership (Platteau 1996; Fitzpatrick 2006). It was thought
that this would position African communities better to participate in the broader eco-
nomic growth, and cause them to abandon their customs and adopt the colonial way of
life (Gluckman 1969; Chanock 1991a; Bennett 1996, 86). The other approach, more
widespread, was to recognise African landholding, but afford it a lesser legal status
than European notions of freehold/private property (Du Plessis and Pienaar 2010;
Bennett 1996, 75ff).40 This approach moved towards recognising “communal” land-
holding, with the communal leadership structures—if those met the demands of the
colonial government—as providing the mechanism for exercising control (Chanock
34 The following two paragraphs rely on the ongoing research of my doctoral student, Jacques
Jacobs, and I wish to acknowledge my gratitude towards him.

35 In essence, a colonial power which could not find any land holding patterns resembling its own
forms of individualised title in the eighteenth century was at liberty to take land from whosoever held
it under different customs, because non-Western ways of landholding renegated a community to
the realm of not having “sufficient civilisation” (Mostert and Fitzpatrick 2004, 311 n8; Fitzmaurice
2007).
36 The basis of this viewpoint was the political theory of Sir Henry Maine (Chanock 1991a).
37 An undelying justification for this viewpoint is the doctrine of “terra nullius” (Chanock 1991a;
Bennett 2004; Klug 1995).

38 See e.g. the Glen Grey Act, 1884. Applied to the Glen Grey Areas, and the districts of Buttherworth,
Nquamakwe, Tsomo and Idutywa (Davenport and Hunt 1974; Thompson and Nicholls 1993; Field
1964; Rose-Innes 1903; Van der Walt 1990; Robertson 1988; Brookes 1924; Carey Miller and Pope
2000; Bennett 1996). This Act and the subsequent quitrent and individual tenure was originally
made possible by the Native Locations Act 18.
39 For example in the Orange Free State, see Davenport and Hunt 1974. Also see Klug 1995.
40 E.g. the “trust tenure model” in the former colony of Natal and the former territory of the Zuid-
Afrikaanse Republiek in 1881 (Cousins 2005; Chanock 1991b; Klug 1995 calls this the so-called
“legalisation route”). Also see Amodu Tijani v The Secretary, Southern Provinces, (1921) 2 AC 399
[404].
1991b).41 It enabled colonial governments, and later the Apartheid state, to have
“indirect rule” (Meek 1946; Klug 1995).
These approaches perceivably distorted traditional African landholding and cus-
tomary law (Chanock 1991b). The limited recognition of African land rights more-
over gave rise to a binary form of property regulation in South Africa—a “deep
contradiction” (Kingwill 2011, 210), distinguishing between private property rights
as a “European” system, and communal land rights as an “African” one (Van der Walt
1999, 263)—persisting even today. In the customary context, property is a function,
primarily, of “resource management” (Himonga 2011, 120; Okoth-Ogendo 2008).
The point of departure is a distinction between access to or benefit from the resource,
on the one hand, and control thereof, on the other (Okoth-Ogendo 2008; Bennett
2004). These tenets of property in customary law are very different from those in
common law: they rely on different political or ethnic units (Cross 1992; Okoth-
Ogendo 2008; Kingwill 2008; Cousins 2008). Such rights are embedded in familial
or communal social structures.42 To the world outside the family or local community,
the holding model for land may appear to be freehold (Bennett 1985)43 : private own-
ership, in other words, subject to all the “standard” or “ordinary” common-law rules.
Inside the relevant political, ethnic or family unit, however, property relations are far
more involved, far more contextual, and far more layered than what can be catered
for by common-law rules (Bennett 2004; Okoth-Ogendo 2008; Cross 1992; Kingwill
2011). Exclusivity of rights is conceptualised differently: group membership deter-
mines who may hold different kinds of rights to property, and under what conditions
(Bennett 1985). The absoluteness of control and enforceability often attributed to
property rights in the common-law context is overshadowed, in the customary con-
text, by the reciprocity of constantly shifting social or familial rights and obligations
in respect of land (Cross 1992; Okoth-Ogendo 2008). The need for material security
is hence addressed in very different ways, relying heavily on an individual’s place
within a particular group (family, or community) instead of that individual’s ability
to participate in an open market.44 The discrepancies are indeed stark in the context
of land, where protection of rights under the law depend largely on whether rights to
such property have been delineated and publicised appropriately (Kingwill 2011).
Still, it is not as easy as discarding the proverbial baby—the Roman-Dutch sys-
tem of property law—with the bathwater of the colonial past. For that, the system of
Roman-Dutch property law is too deeply ingrained in modern commercial practices.
For now, acknowledging the side-by-side-ness of Roman-Dutch and customary prop-
erty law systems will have to suffice. For teaching property law to a new generation
of students, however, it is problematic that the language of South African property
41 Such as allocation of land rights (Chanock 1991b).

42 See Langa DCT on the importance of social and familial obligations in respect of property in Bhe
v Khayelitsha Magistrate 2005 1 SA 580 (CC), [76]. Further see Cousins 2005, 500–501, Bennett
1985, Okoth-Ogendo 2008, Kingwill 2008, Bennett 2004.
43 Bennett criticises the approach of some academic lawyers in using the term ‘ownership’, among
other Western legal terms, to describe African land tenure. See also Bennett 2004.
44 The individual is expected, though, to participate in the processes of production and reproduction
at particular stages of organisation (Okoth-Ogendo 2008).

law has thus far proven incapable of appropriately recognising that there are differ-
ent normative orders associated with property,45 and different values underlying the
rules of property in different contexts (Kingwill 2011; Bennett 1985; Cross 1992;
Bennett 2008).
16.2.2 Eurocentricism and the Current Nature of South

African Law
In the parlance of comparative law, South Africa’s legal system has been receptive46
for most of its existence. It is also regarded as a so-called “mixed” legal system: it
relied on the import and transplant of legal rules from different colonising jurisdic-
tions (Du Bois 2004, 1–16; Fagan 1996; Erasmus 1996),47 and hence contains fea-
tures from various other legal traditions. Depending on the particular issue at hand,
South Africa’s uncodified common law typically relies on principles from either
Roman-Dutch law48 or English law49 to varying extents (Du Plessis 1998, 340).
45 Bennett suggests use of terms such as “right”, “power” and “interest”, rather than “ownership”
in the customary law context; and it has become practical to refer to the former category as “use
rights” and the latter as “control rights” (Bennett 2004, 373). But even these terms are insufficient
translations of the concepts. See also Du Plessis 2011, 49; Okoth-Ogendo 2008.
46 Beyond the initial reception of Roman-Dutch Law, the receptive nature of the South African
legal system is clearly demonstrated following the two British occupations of the Cape, with the
Cape finally becoming a British colony in 1815. Although English policy was to allow conquered
and ceded territories to retain their own laws, this period saw South Africa’s legal system being
largely receptive, rather than productive. Particularly in the contexts of commercial, mercantile and
administrative law, English law was well developed and easily accessible, leading to reception of
entire fields of English law into the South African legal system (Du Bois 2004, 1–13; Fagan 1996;
Erasmus 1996).
47 On property law in particular, see Van der Walt 1992, Milton 1996, Van der Merwe 1996a,
701–709, Carey Miller 1996, 727–728, Van der Merwe 1996b, De Waal 1996, 785, Kleyn 1996,
819.
48 Roman-Dutch law was derived from two main sources, namely Roman law and Germanic cus-
tomary law. The law on original acquisition of ownership is e.g. informed by the principles of
Roman law, while derivative acquisition of landownership through registration has been consid-
erably influenced by Germanic law. A further example of the influence of Germanic law is the
mobilia non habent sequelam rule, which deals with the protection of a purchaser in good faith who
has received transfer of movables, and which still finds limited application in the case of a pledge.
Notions derived largely from Roman law include: (i) the principle of abstraction, which is found in
most civil-law jurisdictions, and dictates that a distinction be drawn between contract and delivery
in the context of transfer of property; (ii) the various forms of real security; and (iii) the traditional
view of ownership as pinnacle in a hierarchy of rights, with the definition of limited real rights
drawn from the definition of ownership (Lee 1953, 3, 130–136, 138–140, 149, 185; Carey Miller
1986, 125–130; Zimmermann 1990, 239–240; Van der Walt 2009, 29–36).
49 E.g. attornment, a form of fictitious delivery recognised in English law, was adopted into South
African law in Standard Bank v O’Connor 1888 6 SC 32, 44. Further, various forms of land tenure in
South Africa, such as perpetual quitrent and 99-year leasehold, originated from English law (Milton
1996, 665–669; Van der Merwe 2004, 238). The reception of English legal principles of property
From these legal traditions, South African property law inherited several features.
The lasting impression, however, came from the particular reception of Roman-Dutch
law principles of property law (Van der Walt 1995d; Zimmerman and Visser 1996,
28).
What was received into South African law, however, was really nothing more
than a snapshot of the principles of the productive legal system whence they came.
Colonialism made the legal system of South Africa converge or coincide with those
in Europe at a particular historical moment, but subsequent developments may have
caused a divergence again. This partly explains why, at the time when Duguit was
expounding the development of the social norm in Europe, very little of the same
tendency was visible in South African law. Another particularly telling example is
the divergences in understanding of the numerus clausus principle as it manifests
in the acknowledgements of categories of real rights to land in the Netherlands and
South Africa. The fact that the South African system allows far more flexibility in
this regard, may be attributable to the fact of significant law reform in the Netherlands
after the era of colonization, at a point when the Dutch legal system no longer had a
particularly strong influence over the South African one.50
However, with Roman-Dutch Law and English common law being taken for
granted as the foundations of South African law, and customary law of land being
so very different in its structures and premises, it is easy to see how, in the new,
critical space carved open by the Born Frees in the Fallist movement, perceptions
about oppressive, “Eurocentric” teaching51 might be kindled.52 Such perceptions may
be lightly fueled by misdirected assumptions about Eurocentricism (Karaosmanoğlu
and Karaosmanoğlu 2016; Duchesne 2002),53 and misinformation about a continued
alignment of modern continental and common law principles with South African
law.54 Rejection of particular principles, notions or even whole curricula might be
advocated based on such assumptions.
through statutory law is also noticeable, but not particularly unique, as laws of different jurisdictions
have often in the past been employed to inform statutory innovation in the South African law of
property. One example is taken from sectional titles legislation (see the Sectional Titles Act 66 of
1971 and the Sectional Titles Act 95 of 1986), which was originally based mainly on the New South
Wales Strata Titles Act (Van der Merwe 1989, 398).
50 A more detailed consideration in Mostert and Verstappen 2015, Chap. 19.
51 Eurocentric thinking is highlighted as being prevalent in academic engagement with African
issues (Asante 2003). It is further argued that Eurocentric thinking is so prevalent across parts of the
world that it is reflected in almost every aspect of academia, especially in the humanities (Marandi
2011; Araújo and Maeso 2015).
52 The academic engagement of Himonga and Diallo 2017 with the particular outcry for decoloniza-
tion at the UCT Law Faculty is informative in summarizing the assumptions of the student protest
movement.
53 Duchesne engaged with the argument of Blaut’s Eight Eurocentric Historians, the second volume
of a planned trilogy in Blaut 2000.

54 For accounts of how existing South African law converges and diverges from its European ‘parent’
jurisdictions, see, e.g. Zimmermann and Visser 1996, 9; Fagan 1996, 64; Du Bois 2004, 1–19;
Zimmermann 2004, 4–8.
As a concept, Eurocentricism is criticized, especially in Development Studies,

for ignoring the potential of non-Western concepts and knowledge (Broman 1995;
Asante 2003). It is also criticized for accentuating intellectual dependence on Western
academic institutions which dominated subject matters and research methods, while
succumbing to cultural relativism (Broman 1995; Asante 2003). Eurocentric think-
ing, it is said, has allowed the West to develop deep “self-regard, self-congratulation
and denigration” of other civilisations, and this has influenced several aspects of
its culture, including its thinking, laws, and policy (Alam 2003). It exuded polit-
ical intellectualism intended to ensure self-affirmation rather than objective study
(Arowosegbe 2014). Eurocentric writings on Africa are exposed where the basis of
the study of Africa never acknowledged the African contribution itself (Arowosegbe
2014).
The rich, diverse and asymmetric55 relationship between Europe and Africa devel-
oped over many centuries, and has been fraught for almost as long (Short 2007;
Meredith 2014; N’Sondé 2010). The two continents are linked by a common his-
tory, cultural overlaps, geographical proximity and their intimate exchanges at a
human, economic and political level (Murithi 2013; Mangala 2013; European Exter-
nal Action Service 2016). Rodney (1981) points out that profits sequestered from
Africa over several centuries still represent “the foremost, if not exclusive, source
and substance of underdevelopment” on the continent (Westmaas 2012). This was
undertaken in furthering the goals of the Eurocentric project of modernization (Gor-
don and Sylvester 2004).56 The uneven relationship between Europe and Africa,
especially as regards the one-way flow of natural resources, contributed to the inabil-
ity of many African countries to build up sufficient national wealth to invest in their
own industries and infrastructure (especially roads and electricity supply) (Chitonge
2015; Amin 1972).
Africa is sometimes referred to as “Europe’s backyard” (Meredith 2011;
Brautigam 2009; Murithi 2013; Adem and Mazuri 2013); a location57 Europe may
wish to keep at a distance, but at its peril (Taz 2010). Africa is also popularly por-
trayed as the victim of colonization and the atrocities that accompanied it (Rodney
1981). The perception inadvertently created is that the continent is unable to rise from
the trauma of that colonial experience (Meskell 2006). Rodney (1981) remarks, for
instance, that “[t]he only positive development in colonialism was when it ended”.
Boahen takes a more reconciliatory approach, pointing out that colonialism also had
55 Literature on the asymmetric relationship founded on African-European trade and European
colonization of Africa abound includes Rodney 1981; Mangala 2013; Boahen 2011; Barton and
Ming 2013.
56 Modernisation is “the process by which a society comes to be characterized by a belief in the
rational and scientific control of man’s physical and social environment and the application of
technology to that end” (Ziauddin 1999, 52).
57 In South Africa, a particularly negative meaning is connected to this word, that denoted an
underdeveloped segregated urban area (township) that accommodated mainly Indian, Black African
or Coloured people during the Apartheid years. The word has now fallen in disuse, but conveys the
sentiment contained in perception summarized above too well to be ignored.
both negative and positive legacies.58 Others argue that Africans’ own “agency in
determining the shape of their encounter with the colonialist” (Kolapo and Akurang-
Parry 2007) is co-determinative of other historical forces (Ochunu 2014; Cooper
2002).
The discourse about what Eurocentricism represents, or not, is important when
contemplating the question what of the past and present in property law should be
taken forward into the future. The body of work is, however, so vast that no attempt
at reduction would do justice to the big question here. The reality is that modernity in
its economic sense renders it impossible to restore communities and social and legal
structures to a pre-colonial status quo. Himonga and Diallo urge for an understanding
of decolonialization that is “non-romanticised and non-rhetorical”, not “reduced to
some naive … desire to return to a pristine, unblemished Africa before the arrival of
the settlers” (Himonga and Diallo 2017, 5, citing University of Cape Town 2015).
Instead, they plead for an understanding of decolonisation that is dynamic; that fosters
a move away from hegemonic thinking about law, dominated by the ideas and “legal
cultures historically rooted in colonialism (and apartheid) in Africa”, towards more
inclusiveness (Himonga and Diallo 2017, 5). Herein lies the real challenge for the
next generation of property lawyers, teachers, practitioners and scholars alike.
The transitional society in which we live renders it undesirable, indeed morally
indefensible, to rely on a system of “absolutist” and exclusionary private property
rights as it was understood in colonial times. There is resonance here with the post-
Napoleonic, codified property law systems on the European continent Duguit criti-
cized in his sixth lecture: the absoluteness which purportedly sat at the heart of those
systems, Duguit explained, was no longer the core truth of property law at all (Duguit
1912). In South Africa, it took a political turning point and the paradigmatic shift of
58 Boahen (2011): On the positive side, politically, Boahen notes (i) the creation of political stability
after World War I; (ii) the introduction of the bureaucracy, civil service and judicial systems (at which
some colonizers were notably better than others); and (iii) the accidental generation of nationalism
and Pan-Africanism. The appearance of African independent states, which Boahen mentions as a
positive development, is marred by the political problems that can be attributed to the irrational
and unwholesome drawing of boundaries at the Berlin Conference in 1884. Boahen’s list of the
worst political impacts of colonialism include (i) the negativity that accompanied nationalism and
which poses hurdles to nationhood; (ii) the creation of professional armies, which have become “a
chronic source of instability, confusion and anarchy”; and (iii) the delay of political development
and maturity of African states. He proceeds to consider the economic impacts: on the benefit side,
there are (i) provision of basic physical infrastructure; and (ii) development of a primary sector
in the economy. On the drawback side, there are (i) uneven distribution of physical infrastructure
across various territories; (ii) delays in the industrial and technological developments in Africa; (iii)
creating monocrop economies in many African countries; (iv) inhibiting inter-African trade; and (v)
debilitating monetary policies. A similar analysis of social benefits and drawbacks are undertaken.
Population growth and urbanisation are mentioned as benefits, and the spread of religions and
education. The new social order that emerged, increased social mobility and new avenues for
advancement are also mentioned as a benefit. But the downside socially was the emerging gap
between rural and urban communities; the uneven distribution of social services and inadequate
meeting of educational demands; as well as the downgrading of women’s status. The most seriously
negative social impact, though, was psychological: the creation of a colonial mentality, ostentatious
lifestyles of the elite and pervading feelings of inferiority and loss of the sense of human dignity
among Africans.
introducing a new constitutional order based on dignity, equality and freedom, for
the same realization to hit home. It happened almost a century later.
16.3 Next Generation Learning: Property Law, the Social

Norm and the “Evil Triplets”
As angry students were staging sit-ins in Bremner building in 2016, next door, in
the Kramer Law Building, Cheri-Leigh Young and I ran the LLM course “Property
in a Constitutional Order” for the first time. We heard the students chanting through
the classroom windows as they marched up and down Lovers’ Walk to protest the
Rhodes statue. Those chants became the soundtrack to our study of the existing texts
on property theory. Outside, the students grappled with the legacy of colonialism.
Inside, we grappled with the meanings of and motivations for existing property
rules. Outside, groupings across campus were drawing battle lines about acceptable
methods of protest.59 Inside, we had in-seminar showdowns about the ideological
roots of property law. This section is about what we learned.
The “hashtag” movements, replicated throughout the country’s campuses indicate
that the ghost of Apartheid is still wreaking havoc (Disemelo 2015). The national
goodwill and openness, created by the good leadership of the early years of our
nascent democracy, have worn off. Ostensibly little remains of the willingness to
atone and forgive, which the Truth and Reconciliation Commission fostered.60
The difficulties faced across campuses in South Africa are obscured by the polit-
ical mire of race/class and access. Pushing past the surface of campus and education
politics, it becomes clear that the primary cause underlying these difficulties is a triad
of problems related to underdevelopment. These align with the biggest moral chal-
lenges to humanity: poverty, inequality and violence.61 Former South African Min-
ister of Mineral Resources, Susan Shabangu, proclaimed that poverty, inequality and
unemployment are the “evil triplets” of that sector (Shabangu 2011). The significant
overlap between the mining sector’s evil triplets and the problems of underdevelop-
ment is interesting. As the brief account of South African history above suggests,
it is especially in the mining sector where the historical roots of these problems lie
deep.
Of the three problems, the one I wish to emphasize here is poverty. This is where
the impact of a social norm of property would be most tangible in years to come.
59 Some of these issues eventually had to be settled by the Supreme Court of Appeal. See Hotz v
University of Cape Town 2017 2 SA 485 (SCA).
60 See Swart (2017) which states that the TRC “was born out of a moment of crisis, an idea that arose
when the negotiations between the two major parties reached an impasse. These tensions threatened
to destabilize the fragile political ‘truce’ arrived at during the negotiations. One key tension was
the tension between justice and democracy…What was ground-breaking about the TRC was that it
presented a third way: a path between vengeance and amnesia”.
61 The National Development Plan seeks to address this “triple challenge” by 2030 (Sulla and
Zikhali; Lange 2012, 4).

Poverty cripples any efforts to move towards an egalitarian state (Gutto 2001, 237).
Poverty exacerbates and entrenches inequality, and the result of inequality over time
is violence: be it physical, social or institutional (Hart 2013).
The South African government distinguishes between various types of poverty;
the upper boundary line, in terms of which the total number of poor persons is
calculated, is determined by measuring the number of persons who earn less than
R992 (approximately $69 or e59) per month each (Stats 2017). In 2015, more than
half of our nation—a staggering 55.5%—was classified as poor in these terms (Stats
2017). Poverty and unemployment are inextricably linked, the one often leading to or
exacerbating the other (Serr 2006; Sulla and Zikhali 2018). Long-term unemployment
may have the ultimate effect of decreasing a candidate’s chances or ability to find
work (Ravallion 2016, 255). Poverty, too, may limit a person’s ability to complete
their education, receive training, or attain the appropriate skills, to enter into or
compete in the job market: a particularly debilitating factor in a declining economy
(Sulla and Zikhali 2018).
Levels of discontent are said to be much higher in societies where inequality is
entrenched (Wilkinson 2005). Property—having it or not having it—is still one of the
most obvious means of gauging economic inequality.62 Let us accept Duguit’s stance
(Duguit 1912) that that protection of private property contributes to the formation
of a well-developed, healthy society.63 Is the converse also true? Can we say that
protection of private property rights entrenches poverty, perpetuates inequality, and
promotes violence in underdeveloped societies?
Education is well accepted as one of the escape routes away from a life of poverty
(United Nations 2017; Van der Berg et al. 2011; Christie and Gordon 1992). From
this perspective, the campus protests, be they illustrations of civic disobedience or
civic activism, should encourage self-reflection. The #FeesMustFall protests, which
grew from #RhodesMustFall were but one wave of social violence,64 but it grew from
a discontent about affordability of higher education. For a moment in 2015, these
protests almost brought government to its knees (Davis et al. 2015; Nkosi 2015).
We venture that this was but the beginning of a new era, in which our society will
continue to chisel away at—or right-out bulldoze—the hurdles to wealth creation.
In transitioning societies, of which South Africa is clearly an example, exist-
ing legal frameworks become contested because of imbalances and deficiencies; for
example, where the law is inadequate to address a particular individual negotiation
62 Factors that are used to determine the levels of poverty in South Africa include (i) income, (ii)
employment, (iii) basic services, (iv) ownership of assets, and (v) social inclusion/exclusion (Stats
2014).
63 Van der Walt states that ‘there is no compelling reason why non-property legal objectives such
as life, liberty, human dignity or equality have to be pursued through the protection of property
rights and at least some ground for believing that the pursuit of property objectives might actually
frustrate the pursuit of those personhood- or human-flourishing securing objectives’ (Van der Walt
2014, 42).
64 See Hotz v University of Cape Town 2017 2 SA 485 (SCA) on some of the modes of protest that
were thought to be unacceptable. See paragraphs [51, 53, 64 and 70] regarding violence and threats
thereof on the part of protestors.
of space or resources. South African property law has much to atone for: it regulated,
enforced, protected and entrenched the systems of ownership that resulted in indi-
gence for millions living under the clouds of inequality and violence (Van der Walt
2006b). If it is to serve the society in which it must function, it should be catering
better for that society; one in which more than half of the members are very poor.
The problem is that the imbalances and deficiencies that render the law dysfunc-
tional for the society it should serve often occur most notably and frequently at levels
that are uninteresting to the commercial world: low-value transactions; disputes about
the use of property or about the sharing of a resource that cannot financially sustain
a protracted litigious event; or where the parties do not know how, or simply cannot
afford to access the legal tools purportedly at their disposal (Liebenberg and Quinot
2012). In such instances, responses from the law-making authorities are typically
slow to be designed or implemented (Botha 2012). The ostensible low value of the
problem seems to eliminate urgency.
The legal system cannot solve all the problems; and it is futile to expect it to.
But the fact that the law is unresponsive or inaccessible does not make the problems
of the indigent go away. If anything, it exacerbates their problems. It is in those
crevices of everyday life in South Africa where the law’s reach is inadequate, where
appropriate responses is most desperately needed. It is the problems of the poor
users of property law that articulate the social norms needed to overcome challenges
which are uninteresting to the legal commercial world, but of immense importance
to address what has been called “the new anger” (Jansen 2015) of the Born Free
generation; so aware of their deprived backgrounds and their destitute futures.
In this section, we venture brief mention of two possible examples where property
law reform could make a tremendous difference to the users classified as poor. These
relate to responding to the phenomenon of informal transfer of urban land (16.3.1
below) and formalizing responses to the phenomenon of backyard shacking (16.3.2
below).
16.3.1 Hand-to-Hand Transfers
The burgeoning phenomenon of informal transfer of land in our urban townships

is one example of the abovementioned low-value transactions (Simons and Viruly
2009). These so-called “hand-to-hand” transfers of land are achieved by the trans-
feror simply handing over the title deed and accepting payment. The information
available suggests that the practice of informal transfer of land is widespread among
the indigent, who cannot afford the formal legal mechanisms available, or who does
not want to, or does not know how, to harness them (Augustinus 2003; Kingwill
2017).
These hand-to-hand transactions defeat the purpose of registration of land, which
is to ensure publicity of rights, publicity being heralded as a tenet of property law
(Badenhorst et al. 2006, 80ff; Van der Merwe 1989, 13–15). In our society, however,
the technicalities of the land registration system and affordability issues present
a challenge where the registration system and the process of land transfer must
serve a broader constituency of users who (for reasons of ignorance, illiteracy or
inexperience) rely on the visible manifestations of what they erroneously think are
legal acts (Mostert and Pope 2010, 343–344; Downie 2011, 121; Downie 2015, 150).
South African property law does not acknowledge hand-to-hand transfers, and
so they remain economically invisible.65 Consequently, those actors who engage in
hand-to-hand transfers effectively nullify the protection and certainty that the formal
system provides, and it perpetuates inaccessibility of the law for many. Moreover,
while these titles are invisible and outside the formal system, they cannot generate
wealth (Mostert and Pope 2010, 4–5, 343–344).
The poor’s inability to access the formal system of transfer results at least, in
part, in the failure of the legal system to recognize their business, personal and
hereditary transactions (Mostert and Pope 2010). How can they be expected to trust
a system that provides very little, if any relief? Trust cannot be generated unless
the current approach changes. What may work is an acknowledgement of the social
norms already governing low-value transfers. Then ways can be devised to create
transparency and accountability in the informal markets.
16.3.2 Backyard Shacking
Another area of the law that results in difficulties for the poor is that of evictions.
The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of
1998 (South Africa) (generally referred to simply as “PIE”) regulates the eviction
of unlawful occupiers from land. It was introduced with the express intention of
ensuring that fair procedures are applied to cases of evictions, particularly given our
country’s history of grievously unfair and wholly undignified evictions,66 which had
taken place at the hands of the Apartheid government.67
65 Registration of property rights is governed by the Deeds Registry Act 47 of 1937. Ownership of
immovable property must be registered in terms of the requirements of this Act.

66 Apartheid’s forced removals in South Africa had the force of law behind them. People were
“driven from their homes, loaded onto trucks and transported to relocation sites, their properties
numbered and expropriated, their houses demolished by bulldozers and they [were] prevented from
entering certain areas, all in terms of law” (Platzky and Walker 1985, 138–146 (emphasis added)).
No protection, not even ownership, could protect people from being removed, as the law empowered
officials to relocate whoever they wished. Thus, while those with title deeds were not as easy to
remove as those without, even they were not safe. The Expropriation Act 63 of 1975 was one of
the Acts in the government’s arsenal of legislation. An owner was not entitled to challenge the
expropriation of land the government deemed it required for “public purposes”. The owner was
only entitled to challenge the amount of compensation awarded, should she be unsatisfied. See also
the contributions in Murray and O’Regan 1990.
67 Port Elizabeth Municipality v Various Occupiers [2004] JOL 13007 (CC), [8–13]. Possibly the
most well-known example of forced removals in South Africa was the case of District Six in
Cape Town. Mass forced removals of coloured and Indian people grew in intensity from the 1960s
onwards. District Six was declared a whites-only area in 1966 and in the following 15 years an esti-
The courts have stated that PIE is not “just a means of promoting judicial philan-
thropy in favour of the poor, though compassion is built into its very structure” (Port
Elizabeth Municipality v Various Occupiers [2004] JOL 13007 (CC), [14]). PIE, s 4
requires a balancing act to be undertaken by the courts in cases of evictions, which
takes into account the interests of all parties, to inform an enquiry of whether it is
just and equitable to order the eviction. Circumstances that the court is required to
take into account include factors such as the “rights and needs of the elderly, chil-
dren, disabled persons and households headed by women”, with the effect that the
determination of what is just and equitable is context-specific (PIE, s 4).
The purpose of this legislation is, without a doubt, geared towards protecting the
poor against arbitrary evictions, or even evictions that resemble the ugly face of those
that occurred under Apartheid. But what happens in circumstances where it is the
poor trying to evict the poor?
It is a common practice in low-income urban areas that owners or occupiers of
residential plots lease backyard space to someone who can put up temporary hous-
ing (i.e. the so-called “shack dweller”) (Corbett 2003, 257). Where the relationship
between the owner/occupier of the main residence on the land and the shack dweller
sours or terminates, and an eviction is sought, the owner or occupier must act within
the legal framework set out by PIE. The difficulty in this scenario is that both parties,
be it owner or unlawful occupier, may be incapable of accessing the protection that
the law provides. For example, one, or both, parties may not qualify for Legal Aid, a
subsidized legal service, where they have income or asset values that fall just above
the means threshold (LegalAid South Africa 2015). If the owner is unable to initiate
legal proceedings, they will not be able to evict any unlawful occupiers through the
means provided by the law, as a court order is necessary to facilitate such a proceed-
ing. Similarly, where the unlawful occupier is unable to defend eviction proceedings,
this may result in a default order being obtained.
This kind of unfairness permeates the legal system in all arenas, and many other
ways in which we cannot possibly do justice within the scope allowed. We mention the
backyard shacking phenomenon here simply as another example of the way in which
the formal operation of property law, particularly, may have unfair or unintended
consequences for the poor, even where it intends to do the opposite.
mated 55,000–65,000 people were forcefully removed. Those who owned their homes were subject
to an iniquitous expropriation process, with a consistent trend of compensation well below property
valuations. In 1982, the remaining 32 families living in District Six were removed. Removals across
the Cape saw nearly 11,000 families relocated to the Cape Flats. The impact of forced removals on
communal cohesion cannot be understated, and community facilities in the new townships to which
people were relocated were poor in comparison to what people had previously enjoyed. Community
networks were obliterated and crime became rife in the harsh new environment in which people
found themselves (Hart 1990, 124–131; Platzky and Walker 1985, 35–36; Geschier 2007, 38).
16.4 The Doctrinal no-Man’s Land Ahead
As a social construct, property is the opposite of poverty. Duguit already pointed out,
more than a century ago, that property is a legal institution designed to “allocate some
wealth to defined individual or community goals”, and “to protect … this allocation”
(Duguit 1912). But he further asserted that those holding such wealth have “the
obligation to accomplish in society a certain function directly linked” to that holding
(Duguit 1912). Duguit’s legacy still calls those holding wealth to account, expecting
them to accomplish certain tasks, in return for which the wealth remains socially
protected (Duguit 1912). These are profound insights when contemplating the role
of the social norm in a society riddled by poverty.
We tend to view private ownership and public resources as separate ideals, exclu-
sive and independent of each other. But Duguit already cautioned, more than a century
ago, that such an individualist approach neglects the impact of the individual on the
entire system within which it operates (Duguit 1912). As much as concepts such as
private individual ownership and possession, and the “absolute” nature of the rights
support private enterprise, they are starkly contrasted against concepts dealing with
communally shared resources.
In this ultimate section of the essay, the question is about the development of the
social norm in South African property law going forward. Knowing that the legal
inheritance from our colonial past is as fraught as that of our customary law, the
question is: What can grow in the no-man’s land between custom and colony? To
answer that question, clarity is needed, also, on the question of whether the values
of a modern “African” legal system are really that different from the values to which
most other modern societies of the world subscribe.
We have to be guided in finding answers to these questions by the one institution
about which South Africans have managed to reach a negotiated understanding: the
Constitution (Constitution of the Republic of South Africa, 1996). Our negotiated
order of justice, upon which a legal framework is (to be) built, is similar to, if
not the same as, most of those to which we aspire; resting as it does on values of
dignity, equality and freedom (Constitution of the Republic of South Africa 1996, s
1). The South African constitutional property clause, section 25 of the Constitution,
in particular, is special for the way in which it combines protective regulation with
redistributive regulation.
At the outset of redesigning our property law curriculum to cater for modern day
exigencies, we would venture this: If autonomy and basic respect for human rights
lie at the heart of the pursuit of a South African system of ideal justice; if recognition
and realisation of civil, political, social and economic rights are important to South
Africans, our pursuit is not that different from the global pursuit of justice. What
matters, is what we do in the crevices of property law, when trying to balance these
interests.
To bridge the divide between the “haves” and the “have nots”, more is required of
the law than legal formalism. In imagining a new doctrinal horizon from the lessons
learned in the wake of the decolonization movement, two final questions need to be
asked: How should property law foster social responses to poverty? And how is it
already doing so.
I venture that South African society has two strengths. These are the qualities that
property law can promote and has promoted over the past 21 years. These qualities
may allow us to overcome some of the challenges of poverty, inequality and violence.
One such strength is visible in the great judicial effort to infuse the operation of the
law with a humanity that goes by the name “Ubuntu” (Bennet et al. 2018, 168).68
Another such strenth is visible in the spirit of entrepreneurship—the “boer-maak-
‘n-plan” mentality—that has seen us use old mechanisms in new ways to ensure, for
instance, tenure security where the law itself provided none.69
Entrepreneurship and Ubuntu might seem to be on opposite sides of the spectrum
of the motivations for development of a truly South African property law framework,
but I would argue, especially with reference to the Witzenberg PALS example below,
that Ubuntu and entrepreneurship may very well be different, correlative features of
a single developmental path.
Noticeably, these social features can best be served where there is considerable
flexibility in the legal framework.
The notion of Ubuntu, may seem elusive, but it is useful when contemplating
how to temper the rigidity of property law.70 Ubuntu is an acknowledgement of the
interdependence of people.71 It accordingly allows the courts to evaluate the needs
of people within a community, relative to established property rights. It has typically
been used where the courts have had to balance the needs of many against the rights
68 Cases in respect of this judicial effort include: Port Elizabeth Municipality v Various Occupiers
2004 (12) BCLR 1268 (CC), [37] Dikoko v Mokhatla 2007 (1) BCLR 1 (CC), [68]; Everfresh
Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 (3) BCLR 219 (CC), [23]; City
of Johannesburg v Rand Properties (Pty) Ltd and Others 2006 (6) BCLR 728 (W), [63]; S v
Makwanyane and Another 1995 (6) BCLR 665 (CC), [131]; The Citizen 1978 (Pty) Ltd and Others
v McBride (Johnstone and Others as Amici Curiae) 2011 (8) BCLR 816 (CC) [168].
69 Under Apartheid, in certain areas (the “Bantustans”), people could not own land, but could hold
so-called “permission to occupy” certificates, or PTOs, issued in terms of subordinate legisla-

tion (Proclamation R188 of 1969). Like other land holding forms available to black people under
Apartheid, PTOs made their black holders’ land rights conditional and precarious (Okoth-Ogendo
2008). As tenuous as these forms of tenure were under Apartheid though, they remain important.
Families are reportedly passing down the carefully kept certificates from one generation to another
as proof of land rights. In the new constitutional dispensation, these tenuous forms of tenure were
meant to be replaced by more secure land rights. However, the reform process so far has failed to
provide a workable alternative. Instead, an Act which was meant to be in force only for a traditional
period of a few years, the Interim Protection of Informal Land Rights Act 31 of 1996 (“IPILRA”),
but which has become a permanent feature of the South African palette of land reform laws, is now
used to provide tenure security to the holders of these Apartheid-style PTOs (Weinberg 2015, 10;
Cousins and Pollard 2017, 179–180).
70 Port Elizabeth Municipality v Various Occupiers 2004 (12) BCLR 1268 (CC), [37]
71 Each of us is connected to the other, and through each other we are connected to our communities.
Jajbhay J describes this connectedness in the case of City of Johannesburg v Rand Properties (Pty)
Ltd 2007 1 SA 78 (W), [63].
of one, in the context of evictions.72 Its flexibility renders it useful in rights-balancing

exercises, especially where people’s lives and spaces overlap by virtue of their right,
or need, to property and resources.73 Insofar as Ubuntu “represents personhood,
humanity, humaneness and morality” (Mokgoro 1997, 2), it is the missing thread,
desperately needed to repair the very damaged fabric of our society.
The idea that “we are not islands unto ourselves” is oft repeated by the judiciary,74
and frequently it is enmeshed with the concept of dignity, the idea that “an individual
human person cannot develop and achieve the fullness of his/her potential without the
concrete act of relating to other individual persons” (MEC for Education: Kwazulu-
Natal v Pillay 2008 1 SA 474 (CC), [53]).75 Ubuntu is valuable, according to the
courts, as a tool with which to confront stressful and dilapidated relationships between
individuals or communities. It can assist with the choice of remedy in attempts to
promote the transformative and healing goals of the Constitution (Himonga 2013,
382).
Attempts to resolve questions about how to share and distribute resources equi-
tably, and how to access them, need to take heed of what seems to be inherently
contradictory features in our law. Redistribution of resources is an attempt at eradi-
cating poverty, and at evening out the inequalities that hamper economic and social
progress. Our economy is now in another technical recession (Whitfield 2018). If
economic growth is to be accelerated, we will have to intensify redistribution efforts.
This is where I see South Africans’ inborn inclination towards entrepreneurship meet
with the value of Ubuntu. And - by the way—the vision is not mine, nor is it Utopian.
These “glimpses of the future,” are real. They are already prevalent in South Africa,
right now.
One example will have to suffice.76 Farmers from around Ceres, the Koue
Bokkeveld, Witzenberg Valley, Tulbagh, Wolseley, Breërivier and the Ceres Karoo
initiated an agreement between themselves, the Witzenberg Municipality, the com-
munity and the Government. Their goal is to make the Witzenberg Centre a “one
stop shop” for agri-business; a centre of success, and they see the establishment of
successful black commercial farmers as a key outcome (Vink 2014, 1).
72 The Constitutional Court confirmed the ability of the law to facilitate such a balancing act, when
Sachs J stated that considerations such as grace and compassion were required by the Constitution in
the context of “a caring society based on good neighbourliness and shared concern” (Port Elizabeth
Municipality v Various Occupiers [2004] JOL 13007 (CC), 37).
73 Ubuntu is valuable, according to the courts, as a tool with which to confront stressful and dilapi-
dated relationships between individuals or communities. It can assist with the choice of remedy in
attempts to promote the transformative and healing goals of the Constitution.
74 For example, this was remarked in Port Elizabeth Municipality v Various Occupiers (CCT 53/03)
[2004] ZACC 7, [37], and repeated in such cases as MEC for Education: Kwazulu-Natal and Others
v Pillay 2008 1 SA 474 (CC), [53].
75 The court in this case further listed 12 basic principles of Ubuntu, most of which are reflective
of the concept of restorative justice (Afri-Forum v Malema 2011 6 SA 240 (EqC), [18]; Himonga
et al. 2013, 408–409).
76 For this account of the Witzenberg PALS examples, we are relying here on the work of our student,
Rose Buckland (Buckland 2017). Similar other initiatives exist. See, e.g., also Rosholt 2017, on the
equally inspiring Solms-Delta project.
It seems that the initiating community, who call themselves the “Witzenberg
PALS” are onto something that can become an antidote for poverty, inequality and
violence. Their vision is telling:
the town has not escaped the general South African malaise of the consequences of Apartheid
and its predecessors, and of the current low economic rates of growth, high rates of unem-
ployment, highly skewed distribution of income and opportunities, and a wide range of social
pathologies. These threaten the future prosperity of the inhabitants of the Municipality. It
is for this reason that the leading farmers of the region have come together to launch the
Witzenberg Initiative, which is an initiative to ensure successful land reform, job creation
and social cohesion (Vink 2014, 1).
The Witzenberg PALS’ plan is simple: invest heavily in terms of capital and
capacity to receive something of shared value (Buckland 2017, 12–13; Vink 2014,
15). The deal they negotiated with government is to establish 50 new commercial
farming units in the Witzenberg area, all headed by black farmers. In exchange for
water licences to farm their existing crops, participating farmers donated their surplus
land into a company established with the purpose of identifying emergent farmers
and distributing the land to them on an increasing shareholding basis. New farmers,
identified by the government and municipality in this way gain an opportunity to
commence commercial farming activity by a minimum 30–50% shareholding in the
company holding the surplus land, and a vetoing vote. In this way, they gain better
access to finance, and mentoring; and guaranteed access to markets. As new farmers
become established in their commercial practice, they may increase their shares in
the land-holding company, the ultimate aim being majority shareholding.77
The initiative is very heavily invested in making existing black farmers successful
and improving or restructuring existing agricultural development projects. Part of the
strategy is establishing an agricultural training college as well as more basic educa-
tional facilities, and prioritising access to the value chain (Vink 2014, 13). Further
community-wide efforts include housing schemes for farm workers, and extending
of the mentorship model to other areas of agri-business, such as packhouses, tourism
and manufacturing (Vink 2014, 13). The advantages of consolidating forces in this
way are astounding: there is increased accountability, better access to markets, and
educational facilities, and an improvement in the quality of produce (Buckland 2017,
17–21). It also protects those involved against volatility of land policies, such as the
“land ceiling” and “zero compensation” issues currently being considered (Buckland
2017, 17–21).
The project is radically different from other land reform projects. It is truly a
marriage of the value of Ubuntu and the spirit of entrepeneurship. It was initiated from
the private sector, and negotiated by the agri-business community in the Witzenberg
area. It is remarkable for the manner in which the local farming community has taken
charge and initiative, and for its win-win approach. The stated values of the initiative
are: Integrity, honesty, respect, trust, transparency, commitment and accountability
(Witzenberg 2018).
77 The different holding model options are expounded by Rose Buckland in Buckland 2017, 14–16.
An example such as the Witzenberg PALS demonstrate the value of identifying

the ways in which state policies, programmes and actions can support or enable the
activation of the citizenry to find ways in which to redistribute wealth so that one sys-
tem of discrimination is not simply replaced by another. It is the relationship between
an enabling state and an engaged citizenry that is highlighted by this example.78
16.5 Conclusion
The current economic status quo will continue to breed anger and resentment if
failure to balance the scales more evenly between the “haves” and the “have nots” is
perpetuated. It is time for a new beginning; and the magic of that beginning lies in
the realisation that our society might have been shaped by its past trauma, but need
not be directed by it.
Looking forward, giving content to the social norm in a new property order in
South Africa must make the most of the willingness of the citizenry to contribute to
a system which will see the eradication of poverty and the creation of more oppor-
tunities for a broader base of the South African population. This is to be achieved
through supportive and enabling state policies and programmes.
In property law, the practicalities of turning away from our national trauma, of
turning ideals into actions, is going to turn heavily on that which we know and can
do: to display our humanity by engaging our entrepeneurial genes. This is, I believe,
where the social norm of property really will be given content in the years to come.
Examples are there already. The task lies ahead.
Acknowledgements The assistance of doctoral research assistants Bernard Kengni and Richard
Cramer are acknowledged with gratitude, as is the contribution of doctoral research assistant Jacques
Jacobs on the section dealing with customary law, and the masters’ student Kelly Cowell for assis-
tance with the section on Ubuntu. I especially also acknowledge the contribution of Cheri-Leigh
Young: we have worked so closely on the social norm in property in earlier publications and in
curriculum design that our views have become forever intertwined. See e.g. Mostert and Young
2016. Earlier versions of this paper were presented to the South African Property Law Teachers’
meetings in 2014 and 2015, and to the meeting of Progressive Property scholars in Newark in 2016.
The financial support of the National Research Foundation and the University of Cape Town is
gratefully acknowledged. Opinions expressed here, and errors made should not be attributed to
either of these institutions.
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Afterword: Property’s Form and Function
Peter M. Gerhart
The authors of the works collected here have accomplished something remarkable.
They have taken Leon Duguit’s one big idea and showed how the idea manifests
itself in countries that face a variety of social and cultural circumstances. In doing
so, the authors have demonstrated that Duguit’s one big idea encompasses many
important subsidiary ideas, all of which are capable of blossoming in the right,
fertile soil. The authors, by revealing their own analytical dexterity and interpretive
skills, have made original contributions filled with sparkling reflections about
Duguit’s idea of the social function of property.
Duguit’s one big idea was that property is about function, not form, so that one
can neither describe not justify ownership rights the apart from property’s rela-
tionship to the system of shared beliefs that bring about social stability and cohe-
sion, what Duguit called social solidarity. Formal conceptions of property cannot
stand apart from, or withstand, social forces that lead to greater social good. This is
a protean idea, and each author has held this idea up to an analytical prism so that
their refractory insights illuminate one or more aspects of property’s social function.
Each author has placed the idea of the social function within a social, legal,
political, or methodological context that reveals the determinants and interactions of
law and society. Although the authors emphasize different aspects of social function
theory, individually and collectively they reveal a great deal about how property
must be understood if it is to stand as a source of, and not a barrier to, social
cohesion.
In these essays, we see the value of ideas in action, but we also see the value of
action that we cannot trace to any particular articulation of ideas. As a number of
essays demonstrate, and as I will show in summarizing the implementation of the
Peter M. Gerhart
Case Western Reserve School of Law, 11047 East Boulevard, Cleveland, Ohio 44106
e-mail: Pmg2@case.edu

P. Babie and J. Viven-Wilksch (eds.), Léon Duguit and the Social
Obligation Norm of Property, https://doi.org/10.1007/978-981-13-7189-9
404 Afterword: Property’s Form and Function
social function idea in the United States, not all implementations of property’s
social function can be traced to Duguit, or to Duguit alone. Over the last century,
many other voices have been developing the idea that property that does not serve a
social function is inherently unstable. Duguit’s genius was to capture the ideo-
logical and analytical spirit of his time, but not all subsequent developments that
could have been generated by his ideas are known to come from his ideas. In this
volume we have the story of the history of ideas about property that reflects a
broader dissatisfaction with the rights-based view of property, and the development
of new views that arose from parallel, but perhaps separate, tracks.
It should not surprise us that few of our authors can draw a straight causal link
between Duguit’s Sixth Lecture and subsequent implementation of the social
function concept. Ideas are evanescent and ethereal. They have many sources and
travel many roads, without always leaving a trace of their origins. Ideas flow
together like tributaries of a stream, mixing together with other ideas so that the
accumulated force of the ideas has a dimension that is greater than any one source.
The stream of ideas flow into one undifferentiated torrent that picks up power as
ideas from disparate sources, and with different emphasis, join together.
Duguit was himself influenced by the social events and thought of his time, and
several of the chapters have shown us the intellectual confluence of ideas that
informed Duguit’s own thought, and that form independent sources of thought that
run along parallel channels. Duguit was a legal realist and an anti-formalist. He, like
others, was trying to blunt attacks on capitalism by seeking to preserve the concept
of private ownership, without giving in to a wooden or pre-determined view of it.
To save the concept of property, he wanted to turn the concept of property to social
ends; undeterred by defects in a system of capitalist property, he sought to trans-
form the system of private property rather than abandon it. This book shows Duguit
the prophet: one who showed before many others that to save capitalism as a form
of social ordering we would have to find a different conception of the relationship
between property and production, and between ownership and social organization.
To save capitalism we would need a conception of property that better-aligned
private and public benefits.
The essays collected here reflect three broad themes, each of which I will discuss
in turn. The first theme, as I have already alluded to, is the transformation from a
formal to a functional understanding of property, which many of our authors
captured by referring to the transformation from the absolutist conception of
property to a more nuanced conception that understands property as a source of
responsibility as well as of right. I develop this theme, in part, by summarizing the
tension between formalist and functionalist approaches to law in the United States.
A second theme of these essays is that property regimes are socially contextual, not
pre-configured. A property system does not arise with a pre-determined set of rights
and responsibilities. Although property regimes influence social organization, they
are also determined by social, cultural, and historical forces that respond to new
developments in science and technology. The contextuality of property arises from
the need for property systems to function socially, which requires a good fit
between property regimes and social, historical, and cultural variables. Finally, a
Afterword: Property’s Form and Function 405
third theme of this book is that the social function of property can be achieved from
below –by changing perceptions about the concept of ownership and the respon-
sibilities it brings—or from above—by the way law rearranges the rights and
responsibilities of ownership. These two methods of implementing the social
function, undoubtedly interrelated, are themselves determined by whether a culture
is receptive to a legal system that puts the interests of the community over the
interests of the individual.
These themes come together in the question of constitutional property—the
foundational rules for protecting property rights while recognizing the social
responsibilities that ownership gives. We can tell a great deal about property law’s
social flexibility, contextuality and legal methodology by understanding how a
country deals with the distinction between expropriation (taking) and deprivation
(regulation of property use).
From Formal to Functional
Duguit’s essay arose from the confluence of two strands of intellectual thought. One
was the anti-formalist idea of the legal realists; the other was the challenge to the
idea of private property itself. Weaving these to strands together, Duguit recognized
the need for a different conception of private property. As a realist, Duguit
understood that the formality of law produces more mysticism than reason, more
politics than neutral principle. That is because the existence of the right to private
property does not foreordain or presuppose the scope of the rights of property
owners. To confer a property right on someone does not tell us what scope or
limitations that right entails. If one tries to reason from the existence of rights to
determine what the rights-holder can do (or cannot do), one is either making
unjustified conclusions, or hiding a political agenda in the form of an argument that
masquerades as a conclusion.
From this realist perspective, rights can be understood not as the source of law,
but only as the conclusion brought to an inquiry about how property ought to
function in society. Property rights have a social function because the function of
rights in a particular culture determines the scope of the rights. Rights in property
are shaped by social needs, and do not exist, either conceptually or normatively,
outside of that social need. To be sure, the owner of a home may be given an
expansive set of rights to exclude, but the rights are not derived from ownership;
they are derived from the social forces that make ownership an attractive way to
organize society’s response to the need for shelter.
Interestingly, this anti-formalist perspective was not new; but it was downplayed
during much of the nineteenth century. At the dawn of the capitalist adventure,
economist/philosophers attempted to show that private property was consistent with
social welfare. The Enlightenment defenders of capitalism did not rest their claims
for capitalism on the right to property as the origin or justification for property.
Rather, Enlightenment thinkers justified the right to property by developing the idea
of the invisible hand that would guide the use of property for social good (Smith
1776; Mandeville 1714). Capitalism was thought to be justified by its social
function, and this meant that the idea of private property was justified by the wealth
that it would create.
The Enlightenment thinkers vastly oversimplified the circumstances under which
private ownership would provide a social function, and vastly underestimated the
circumstance under which property rights and social function would diverge. They
did, however, provide a justification for the social function of a capitalist property
system that lasted until the excesses of the capitalist system and its tendency toward
inequality became apparent. Under the invisible hand view, there was no need to
distinguish between form and function, for the invisible hand made form and
function indistinguishable.
Over time, however, rigor mortis set in. The arguments for the benefits of a
capitalist system as a means of social organization were transform into statements
about property as the end of social organization. Property’s function was lost and its
form became law’s end. Even as the invisible hand became more arthritic, too few
people stopped to remember that the goal was not property; the goal was social
cohesion. When it turned out, in reality, that broad property rights produced social
detriments as well as social goods, and when the value of property shifted from land
to capital machinery, the system of private property that supported and justified the
capitalist system showed its cracks. Indeed, those cracks showed the contradictions
inherent in property that were smoothed over by the Enlightenment thinkers: those
contradictions remind us that what is mine cannot be yours, that my ownership
inevitably impinges on your freedom, and that when property is removed from the
commons the idea of ownership must itself be justified. Unless abundance leaves
“as much and as good” for the rest of the people when property is removed from the
commons (Locke 1689, Chap. V, para. 27), private property is without justification;
it is theft, a skeptical tradition that Duguit inherited (Proudhon 1840, at 2). That is
the basic tension between rights and responsibilities –between the self-regarding
and the other-regarding person—and the great challenge to any society that orga-
nizes itself around private property.
This contradiction inherent in private property when property is scarce, along
with the inequality excesses of capitalist property, threatened altogether the very
idea of private property. If private property cannot serve society, why have private
property? Why not shift to a system of common property, one in which society as a
whole, through its government, decides how to best organize the use of resources?
As one of our author’s comments, Duguit “navigate[d] between established notions
of an absolute right and socialist theories that sought to abolish all forms of private
ownership” (Mirow 2019b).
Duguit’s essay was designed to save private property from itself by changing the
way by which we think of the rights created by private property, and to devise a
way of thinking about private property that would allow a society to align the rights
of private property with the needs of society. He wrote as part of an intellectual
wave that was trying to save capitalism from its excesses and from the inequality
that it could bring about. It is no accident that Duguit was thinking and writing
about the gap between private property and the social good at the same time that
Pigou was thinking and writing about the gap between economic markets and the
social good (Pigou 1903). Pigou wrote about market failures; Duguit about the
related problem of private property failures. Duguit recognized this, for he traced
his own thought back to the French economist Leon Say.
The tension between form and function has played out in the United States in an
uneven fashion. Although Duguit was best known in the United States for his
theory of the role of the state in advancing social solidarity, his work influenced
progressive policy makers and prominent legal realists. Frida and Harold Laski, two
prominent British progressives, translated his Law in the Modern States into
English in 1919, toward the end of first progressive period in the United States, a
period that led to the first income tax, federal antitrust legislation, and the first stab
at regulating unsafe working conditions and products (Duguit 1919). Major parts of
the book appeared earlier in the Harvard Law Review (Duguit 1917). More directly
related to the idea of property, Felix Cohen was influenced Duguit’s view of the
role of property (Paul 2006). However, because this book is the first to present
Duguit’s Sixth Lecture in Buenos Aires in English, most of the citations to Duguit’s
social function in United States legal literature were made by scholars fluent in the
languages into which Duguit had been translated (see, eg, the sources cited in
footnote 3 of MC Mirow 2010).
The second progressive era in the United States, that ushered in by the Great
Depression, was driven by pragmatic, not intellectual forces, and Duguit apparently
played little role in the intellectual support for Franklin Roosevelt’s New Deal. The
focus was on “how do we get people back to work” rather than on the role of
property as a force for social solidarity and cohesion. Many policies reflected a
progressive agenda, but they were generally undertaken in the name of reforming
markets rather than in terms of reforming the conception of property as a means
toward social cohesion. Indeed, even as the United States entered a kind of social
contract that emphasized social solidarity after World War II—an era of highly
progressive taxes and the sharing economy induced by labor-management bar-
gaining—the debate between formalists and functionalists (positivists and legal
realists), took the form of focusing on process not substance. Duguit was, of course,
cited for his general views on the role of the state, but his social function theory
appears not to have been influential.
Then, beginning in the 1970s the United States has seen two waves of property
theory, one antithetical to the idea of a social function and the other more receptive.
First, property theory came to be dominated by the wealth maximization theories of
economists. These theories endorsed a functional view (and they were realist in
their conception of the law), but they were built around a concept of individual
(rather than social) wealth maximization and favored strong property rights. The
second wave, perhaps spurred on by the comparative legal and economic theory of
Ugo Mattei (Mattei 2000) wrote largely in reaction to the economic view of
property, was denominated the progressive property movement, and featured arti-
cles about the “social-obligation norm” in property law (Alexander et al. 2009).
Interestingly, the articles that organized themselves around the idea of progressive
property did not seem to be aware (or, at least, did not cite) Duguit’s social function
(Alexander 2009). It was not until 2010 that MC Mirow, one of this authors
featured in this volume, introduced Duguit’s work to United States audiences by
connecting the idea of the social function to the idea of the social obligation (Mirow
2010). Since then Leon Duguit has been cited with more frequency as a property
theorist (Alexander 2014, at 1263; Foster and Bonilla 2011, at 1003).
The debate in the United States between a formal and a functional view of
property has not been settled, nor has an accommodation been struck, but Duguit’s
social function is likely to play a larger role in the future.
The Social Contextuality of Property
As our co-editors wisely anticipated when they organized this volume of work, the
essays collected here show the social contextuality of property regimes—that
property regimes flow from social and political forces that respond to evolutionary
determinants that reflect the past and shape the future. If we doubted the idea that
property regimes are socially contextual and contingent, this book dispels our
doubts. The realist idea that property law is derived from the values that emanate
from society is mirrored in this volume by the many social/political features that
determine the pace and scope by which a particular legal system implements the
social function.
The social function theory therefore melds the universal and the contextual. The
theory is universal in the sense that any property regime must address the social
forces that shape the law; it changes with, and helps to mold, those forces. If the
property regime gets too far away from the morality reflected in social forces, it is
bound to break down, perhaps violently. We need only look to the American Civil
War to recognize that when the morality of social forces gets too distant from the
property regime (in that instance, property in human beings), violence may be the
only way to align property values with moral social values.
Duguit posited the general idea that the function of a legal system is to adjust
private obligations to meet social benefits. But, as I will elaborate below, he made
that idea contextual by insisting that individual values would be determined by the
social, cultural, and historical environment surrounding the individual. The con-
textuality of property depends on its evolutionary nature, and by the social, his-
torical, and cultural factors that influence the content of any property system.
Grounded in technological and scientific developments, in changing patterns of
land use, and in the awareness of social interdependence, the evolutionary nature of
the concept of property is what gives the social function of property its uniformity,
which allowing the concept simultaneously to provide a uniform theory with
contextual implications.
The idea of the social function of property was influential in all capitalist coun-
tries, of course, for it reflects the adjustments that countries made to the capitalist
system. But the timing and scope of that adjustment reflects country-specific factors.
In Argentina, the idea of the social function of property made minor inroads leg-
islatively but did not get full constitutional recognition until the election of the
Peronist government in 1949 (Mirow 2019b, 274). In Brazil, where much of the
property was both agricultural and abundant, the implementation of the idea of the
social function had to wait for the great migration to urban areas, where the scarcity
of land and housing, and the inequality of wealth, induced just the kind of inter-
dependence that Duguit’s social function theory anticipated (Crawford 2019).
By contrast, in other countries, where the ideas of legal realism and social
cohesion were already developed, the acceptance and expansion of the social
function of property was quick and it may even have contributed to Duguit’s
understanding of the social function. In Norway, where the culture already
understood and appreciated the interdependence of people in society, the legal
system had not fallen into the trap of formalism or metaphysics (Stenseth 2019,
124). Norway adopted a pragmatic or realistic approach to law that fit will within
the idea that property functions to enhance the social fabric. It was here that Duguit
became a co-partner with other academics in seeking a better conception of both
law and property to the end that law would be understood to be a means to the end
of social, not individual, well-being.
Still differently, in Russia, Duguit’s idea of the social function of property
became converted into the idea of property as a means of social control. This put
property at the service of the state rather than the state in the service of society,
which is how Duguit envisioned it. This transformed Duguit’s idea that property
would reflect the social values that emanated from the way interdependent people
treated each other to the idea that property would serve the state, which has an
independent set of dynamics (Malfliet 2019).
Within these essays we see different interpretations of the evolutionary nature of
the social function of property. In the eyes of some, Duguit’s notion of evolution
assumed the continual development of property toward an ideal (Burdon and
Stewart 2019), and Duguit did indicate that over time the evolution of social
function of property would more closely align private and public interests. Yet
evolution is a tricky concept precisely because it is difficult to know the time-frame
over which we ought to measure progress; what looks like a return to the subjective
and individualistic conception of property may be a wrong turn in the evolutionary
development that will die out, or a legitimate belief that in some instances the
narrow conception of property will serve a social function. In any event, because
countries start from different social, historical, and legal systems, the evolution of
the social function is likely to be uneven and socially specific, as we see in the case
of China (Chen et al. 2019).
The social contextuality of property itself refutes formal approaches to property
law, but it also raises questions about whether any aspect of property can be called
universal. Formality implies that there is something embedded in the concept of
property that must make it universal, not contextual. It implies that a system of
property cannot be a system of property unless it meets specified formal charac-
teristics. This, in turn, fortifies that idea that formalism is an acceptable legal
approach; the appeal of formalism is the appeal of universality and the appeal of
universalism is the appeal of formalism. This view, however, misconstrues, again,
means and ends. What is universal about property is the need to view property
regimes as a means, not an end. As I have mentioned, the universality of the social
function of property lies in its contextuality and in the realization that what is
universal about the social function of property is that because social, historical, and
political conditions differ, context matters.
Diversity in Implementing the Social Function
The essays collected here also show diverse means of implementing property’s
social function: it can bubble up from social channels, or it can trickle down from
political forces.
Duguit believed that a new concept of property would free property owners to
develop a new conception of themselves in relation to property and society. Rather
than property reinforcing the individualistic and self-regarding conception of
ownership. Duguit posited that ownership would free the individual to avoid the
trap of isolation from society and to embrace the idea of interdependence on which
society is based. He sees property moving from a subjective right—a statement
about an owner’s freedom from society—to the affirmation of the owner’s “liberty
to fulfill a social goal.” (Duguit 1911). He sees the new conception of ownership to
be liberating rather than entrapping, almost as if the right to exclude induces people
to builds walls while the responsibility that one feels as a member of society
induces owners to tears them down.
This focus on the individual’s view of what ownership entails is an important
part of the social function that Duguit envisioned. As a philosopher and sociologist,
Duguit focused on the individual owner and the shift in individual attitudes toward
ownership that would have to occur for the social function of property—the
alignment of individual interest with social interest—to take place. That shift in
attitudes about ownership allows the system of private property to yield to better
social results—to arise naturally from a system of private property, without having
to interpose the government between the owners and society. The rights of owners
would still be guaranteed but they would function in a world where the person
exercising those rights would understand herself to be exercising those rights on
behalf of something larger than herself—that is, on behalf of society.
In Duguit’s view, the idea of ownership was not changing; what was changing
was how people would react to ownership and understand themselves in relation to
what they owned. Duguit’s emphasis on the individual was focused on the
increasing interdependence that made each individual feel a connection with other
individuals. Because of technology, mutual interests, and shared beliefs, the idea of
what it meant to be a good neighbor (always a part of the concept of ownership)
was changing. And this change would bring individual decisions about property use
closer to socially-productive decisions about property use.
What Duguit was envisioning was the transformation from self-regarding to

other-regarding behavior.1 The problem with private property, as he saw it, was that
it encouraged self-regarding behavior –behavior that accounts only for the interests
of the owner and does not factor in the interests of those affected by the owner.
What Duguit saw was that if the conception of ownership changed so that an owner
served to both protect his own interests while balancing those interests against the
interests of those affected by that ownership, the gap between private property and
the well-being of society would become narrower, even without the need for
government intervention to force other-regarding behavior. The change in the
nature of property would be invisible, although its consequences would not be. That
is why it did not especially bother Duguit that he could not point to any legislation
that required property owners to act for the public good. The point was not that
legislation was changing property law, the point was that the idea of the obligations
that owners voluntarily accept was changing. People were using their property more
productively, with less hoarding (speculation), and that was enough to claim that
the social function of property was growing.
What our essays show, however, is that implementing the social function is not
just a matter of changing the point of view of owners so that owners internalize the
social value of other-regarding behavior. Sometimes the social function depends on
legislation that forces an owner to internalize other-regarding values by changing
the legal incentives an owner faces. If owners did not internalize social values on
their own, the law would have to provide an external incentive that would shape the
internalizing forces. We see this, for example, in the chapter on the United States
(Odinet 2019). Because the United States justifies the idea of property by glorifying
the role of the individual, government regulation has often been a necessary part of
the social function. Indeed, the failure of the United States to affirm through the
common law that a retailer store’s right to exclude does not justify excluding people
on the basis of race or other impermissible grounds. Shows just how difficult it is to
change perceptions that an owner may use property to segregate, rather bring social
solidarity to a society. Similarly, in France, where the absolutist view of property
was enshrined in foundational documents, the right of the legislature to regulate
property was acknowledged and practiced (Deroche 2019, 68).
Yet even when government regulation is necessary to ensure the social function
of property, we must understand that individuals internalize social values in part
because government regulation leads them to that internalization, and that gov-
ernment regulation is itself a reflection of values that at least some of the population
hold. People can change their values, and their behavior, because they understand
themselves differently with respect to other people, or they can change their values
because they are led to understand the social function that underlies government
regulation. Either way, the social function of property changes and individuals
internalize new values.
1
The distinction between self-regarding and other-regarding behavior is explored in Gerhart 2014.
Constitutional Property
One of the battlegrounds over which the social function of property is fought is the
question of constitutional property—the freedom governments have to regulate and
restrict ownership in the public interest. Duguit himself illustrated property’s social
function by pointing out the freedom that telegraph and telephone companies had to
string their wires unobtrusively across an owner’s property, all without paying
royalties. Every owner had to sacrifice some measure of the right to exclude in
order to facilitate interconnectedness that this new technology brought. The right to
exclude gave way for the common good (and, incidentally benefited the landowner
by connecting one landowner to others).
Most nations agree that if the government expropriates (or, in the United States,
takes) private property it must do so to advance a social function (“public use” in
the United States) and must pay compensation. As the United States Supreme Court
has said, the burdens of providing public goods should not be shifted to only some
owners; they ought to be borne by taxpayers in general (Armstrong v United States,
364 US 40, 49 1960). Behind the idea of lawful expropriation, the social function is
worked out by determining what government acts constitute an expropriation, when
expropriation advances the social function, and what compensatory burden should
be shifted to the populace. But the answers to those queries are by no means clear
and can only be determined by working out the social function of property. When
the government condemns all of the owner’s property, it effectively takes all of the
right to exclude and no one doubts that doing so effectuates an expropriation
(taking). But Duguit’s illustration of the right of a telephone company to string
wires across private property presents something of a conundrum for countries:
should the property owner contribute the space without compensation or should the
property owner expect at least a small compensation for the reduction in its right to
exclude?
I think Duguit got the right answer, notwithstanding a seemingly contrary ruling
in the United States (Loretto v Teleprompter Manhattan CATV Co, 458 US 419
1982).2 The right to exclude has always been subject to reasonable and
even-handed exceptions, and these minimal and socially-justified restrictions
should be understood to be part of the social contract that makes up the concept of
property.
More difficult questions are raised concerning the social function of property
when the government does not take the right to exclude but instead regulates the use
of property, allowing the owner to keep ownership rights but affecting the value of
property by regulating the uses of the property. Wetlands preservation and zoning
restrictions are examples. In these instances, where the value, but not the owner-
ship, of property is changed (what many countries refer to as a deprivation), the
balance between public and private value is especially difficult to make. Moreover,
2
The government is required to pay compensation when its regulation compels an apartment owner
to allow a cable TV company to string cable wires across the outside of the apartment building.
the social function of property must distinguish between expropriations and

deprivations. If we do not distinguish between government action that affects the
right to use property and government action that affects the power to exclude from
property, we are in danger of applying an incorrect methodology to the determi-
nation of the social function. That is the mistake made by the United States, where
the Supreme Court developed the regulatory takings doctrine to require compen-
sation for some land use restriction. Government restrictions on the power to
exclude (expropriations or takings) can never be equivalent to government
restrictions on the right to use property, precisely because the right to exclude is
never equivalent to the right to use property (Gerhart 2019; van der Walt 2009, 22,
4127) social function into sharp relief, because they each require us to consider the
relationship between property and society, and each requires that lines be drawn to
articulate when government regulation goes beyond the social function and
deprives a property owner of compensation or use rights that outweigh the social
benefits of government action. But the tests used to determine when an expropri-
ation is consistent with the social function must be different from the tests that are
used to determine whether government action that leaves the property in the hands
of the owner is consistent with the social function. That is true because deprivation
affects only the value of property, without affecting ownership of property.
Conclusion
The final word concerning the social function of property has yet to be written. This
would not surprise Duguit because he understood property’s function to be evo-
lutionary, not static. He knew that as society changes in response to scientific and
technological development, and as social awareness of human interdependence
grows, the function and shape of property rights and responsibilities will change.
He also understood that the social function of property looks different to those who
have property and those who do not. Those who have property believe that property
comes with a pre-determined set of rights that minimize social responsibility; the
latter believe that rights are derived from the way in which property serves a social
function, so that property includes responsibilities as well as rights. Accordingly,
we can expect a continuing struggle between the idea that private property comes
bundled with some pre-determined set of rights and the idea that the scope of those
rights is determined by the social consequences that rights and responsibilities
enable.
What is important is not the struggle between two views, but the social deter-
minants of the trade-offs between the two views. This book has done a wonderful
job of adding to our knowledge by illuminating anew the ways in which culture and
legal institutions interact, and it has done so in ways that allow us to understand the
institution of property in comparative cultural perspective. This, in turn, sets up the
next chapter of comparative property research. On the one hand, we can understand
the next phase of social function research to begin to map the determinants of
convergence and divergence in property norms. What are the sources of techno-
logical change, migratory patterns, cultural identity, and national sovereignty that
are likely to have an impact on the social function of property and lead to inter-
nalized values of sharing or external values of regulation that redefine the bound-
aries of property law? This next generation research is likely to take place across
academic disciplines and to address specific topics, such as limitations on the right
to exclude, the definition and requirements of good neighbors, and the boundaries
for expropriation and deprivation.
Each of these studies will examine property law from a sovereign cultural
perspective, but another frontier will be to examine the international law of prop-
erty–property that represents the common heritage of mankind and therefore a kind
of property that necessarily serves a social function, property over outer space and
the oceans. Here international norms will determine the shape and scope of rights
over things that cannot be confined to, or defined by, the sovereign boundaries that
now allow carbon energy resources to be owned by individual countries, while their
effects are within the domain of no single country. We can then begin to understand
the social function of property on a global scale.
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Index
A liberal interventionist system, 193

Absolute right, 39, 41, 53, 114, 136, 140, 146, mixed system of property, 176
154, 160, 177, 184, 188, 275, 277, 314, traditional conception of property in, 141
352 Common interest communities, 26, 291,
Agrarian reform, 172, 175, 185, 212 294–297
Allodial title, 222 Constitutional law and property, 116, 119
Argentina Constitution of 1949 (Argentina), 98
Duguit in, 11 Consumer protection, 302
also, seeSixth Buenos Aires Lecture, The Co-ownership, 26, 137–139, 313, 314, 325,
in the nineteenth century, 25 326
Australia Covenants, 237, 295–297, 304, 341
neoliberalism in, 28 Credit, 75, 115, 296, 298–302
B D
Blackstone, Sir William Debt, 20, 299, 303
absolutism in 'despotic dominion', 2, 334 Doctrine, 10, 16–20, 22, 24, 58, 66, 67, 74–78,
Brazil 82, 83, 88, 112, 118, 124, 134, 136, 144,
Brazilian jurisprudence, 235 147, 154, 195, 197, 255–257, 262, 265,
case law, 265 320, 323, 327
Dodd-Frank Act, 301
C Duguit, Léon
Canada biography, 8
Québec contributions to other fields, 358, 361
civil law and Duguit in, 26 Sixth Buenos Aires Lecture, The, 8
Capital, 26, 41, 43, 47, 133, 152, 295, 301,
302, 308, 337, 339, 340, 342, 347, 395 E
China Ecological function, 174, 194
constitutional property clause in, The, 336 Encomienda, 213, 215–217, 219
copyright law, 346–350 English law
social capital in, 342 also, see Blackstone
Civil law, 10, 15, 25, 66, 75, 88, 97, 105, 115, also, see social obligation norm
157, 162, 171–173, 177, 182–184, Enlightenment, The
316–318, 322, 324, 346 also, see social contract
Civil rights, 98, 103, 115, 183, 291, 294, 305 and Feudalism, 224
Colombia in Prussia, 102

P. Babie and J. Viven-Wilksch (eds.), Léon Duguit and the Social
Obligation Norm of Property, https://doi.org/10.1007/978-981-13-7189-9
418 Index
European Court of Human Rights (ECtHR), Latifundio, 217, 220, 230

140 Latin America, 24, 25, 181
Expropriation, 48, 49, 52, 53, 72, 73, 90, 92, Lease, 15, 69, 70, 73, 120, 139, 162, 344, 391
105, 119, 140, 175, 179, 184, 186, 197, Lefebvre, Henri, 260, 264
337, 390 Legal change, 336
Legal consequences of inactivity, 134
F Legal culture, 124, 172, 193
Fairness Legal pragmatism, 125
fair housing, 305, 306, 346 Legal standards, 130, 133
fair use, 346 Lepaulle, Pierre, 323, 324, 327
Feudalism Loans, 162, 163, 219, 299–302, 306
also, see social contract
and the Enlightenment, 94 M
Finance, 302, 395 Marx, Karl
France Marxism
Code civil, 17 Marxist-Leninism and property, 23,
reception of Duguit in, 82 145, 148, 154
Functional property concept, 124 Mortgages, 299–303, 344
G N
Germany Nationalisation, 369
dominant conceptions of ownership, 1 National socialism
Gemeinwohlklausel, 117 also, see Germany
Grundgesetz (Basic Law of Germany), 22, law and legacy of, 156
111 Natural Law
reception of Duguit in, 118 and the Enlightenment, 97, 103
social conditions in, 87 in modern Germany, 22, 95, 105
Weimar Republic, 87, 92, 106, 118 Neoliberalism, 243, 357, 358, 364–368, 370
Non-compensatory Regulations, 127
H Nordic Realism
Historicalschool, 22, 87, 89, 93–95, 103, 104, Scandinavian legal realism, 23, 124
106, 112 Norway
Housing modern, 22, 123
homeowner associations, 333, 339
homeowners, 139, 335 P
household finance, 152 Pandectism, 379
housing discrimination, 305 Perón, Juan, 274, 276, 282
Political implication of property ownership,
I 143, 144
Ihering, Rudolf von, 89, 94, 106, 113–115, Positivism
125, 130 in Duguit, see Sixth Buenos Aires Lecture,
The
J sociological positivism, 316
Jhering, Rudolf von, see [I]hering, Rudolf von Post-communist privatisation, 23
Productive use, 189, 197, 203
L Progressive property, 6–8, 27, 334, 374, 375
Land reform Property rights, 6, 15, 17, 19, 22, 23, 26, 79,
in Colombia, 233 87, 102, 119, 126–128, 130, 133–136,
in Russia, 411 138, 140, 144, 145, 148, 150, 155, 156,
social function doctrine as a legal basis for, 159, 161, 163, 179, 257, 291, 295, 296,
The, 224 302, 304, 305, 307, 333, 336–338,
Land restrictions, 105 343–345, 380, 382, 386, 388, 393
Index 419
Property theory, 6, 21 261–265, 291, 295, 296, 298, 307, 308,

'Public things' 318, 321, 322, 333–335, 348, 352, 375
Bonnie Honnig, 28 Social function test, The, 129
Socialization of property, 67, 81, 306
R Social obligation norm
Real world considerations, 123, 124, 126 in America, 20
Regalia, 223 in Argentina, 24
Regulatory expropriation, 241, 242 in Brazil, 24
Regulatory takings compensation, 130 in Colombia, 24
Repartimiento, 215–217, 221 in English law, 13
Revolution, 175 in France, 16
French (1789), 14 in Germany, 111
in Latin America, generally, 24, 223 in Norway, 411
October Revolution of 1917 (Russia), 143, in Russia, 87, 258
144 Social ownership, 77, 334
Perestroika as a revolution(?), 161 Social responsibility, 96, 119, 334
Revolución en Marcha (Colombia, 1934– South Africa
8), 191, 204 #RhodesMustFall movement, The, 377,
Right to exclude, 6, 295, 303 388
Right to the city, 25, 255, 260, 262, 263, 265, Statute of the city, 25, 263, 264
267 Stewardship, 7, 353
Roman law, 5, 9, 17, 19, 93, 101–104 Subjective rights, 26, 77, 81, 124–126, 134,
Rural land market, 352 135, 200, 201, 314–320, 324, 379
Russia Substance of property rights, The, 127, 128
agrarian community in, 153, 154
property at the revolution of 1917, 151, T
152, 258 Tenure
re-constitution of the Russian patrimonial tenants, 150, 336, 337
state, 143, 145 Trusts, 26, 92, 162, 313, 318, 322–324, 326,
Soviet conception of property 327, 342, 390
Perestroika, 155, 159
U
S United States of America
Sampay, Arturo Enrique, 24 Reception of Duguit in, 118
Sixth Buenos Aires Lecture, The, see Duguit Urbanization, 70–72, 257, 259–261, 263, 264,
Social capital, 27, 333, 339, 340, 342 341
Social contract also, see Enlightenment, The Urban law, 262, 291
Social function, 6, 9, 12–14, 21–28, 37, 65, 67, Utilidad pública, 209, 228, 229
69, 71, 73–79, 81, 82, 87–91, 94, 106,
107, 114–116, 126, 128–130, 133, 135, W
136, 140, 144, 146, 147, 154, 156, 160, War economy, 90
165, 172–175, 184–187, 189–192,
194–198, 200, 201, 203, 256, 258,

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Paul Babie · Jessica Viven-Wilksch

Léon Duguit and the Social

ISBN 978-981-13-7188-2 ISBN 978-981-13-7189-9 (eBook)

Library of Congress Control Number: 2019934800

© Springer Nature Singapore Pte Ltd. 2019

Toronto, Canada Larissa Katz

générales du droit privé depuis le Code Napoléon (Paris, 1999, La Mémoire du

Adelaide, Australia Jessica Viven-Wilksch

Adelaide, Australia Jessica Viven-Wilksch

1 Léon Duguit and the Propriété Function Sociale . . . . . . . . . . . . . . . 1

Part I English Translation of Léon Duguit’s 1920 Buenos Aires

Part II The Importance of the Social Function of Property—Europe

Part III The Importance of the Social Function of Property—

9 Tierra y Libertad: The Social Function Doctrine and Land

Part IV The Importance of the Social Function of Property—

Part V The Importance of the Social Function of Property—

Afterword: Property’s Form and Function . . . . . . . . . . . . . . . . . . . . . . . . 403

About the Editors

Jessica Viven-Wilksch is a Lecturer in the Adelaide Law School, The University

Thomas T. Ankersen University of Florida Joint Program in Environmental Law

Peter D. Burdon Adelaide Law School, The University of Adelaide, Adelaide,

Paul Babie and Jessica Viven-Wilksch

P. Babie (B) · J. Viven-Wilksch (B)

© Springer Nature Singapore Pte Ltd. 2019 1

Keywords Legal change · Absolute right · Positivism · Duguit · Social obligation

1.1 Legal Realism, Social Relations, and Progressive

Of course, no real-world system of private property ever has been absolute;2

6 Some would say disintegrated (Grey 1980).

(1996). Yet today it is hardly known and rarely cited.

1.2 Léon Duguit

And Nader Hakin summarises Duguit’s approach as follows:

18 This is apparent in the 6th Buenos Aires lecture.

which aided the diffusion of Duguit’s ideas.

1.2.2 The Sixth Buenos Aires Lecture

Argentina (Laborde-Lacoste 1959, 100).

(loi du 15 juin 1906), JORF du 17 juin 1906 p 4105.

Duguit’s understanding of property demands attention today; we turn now to why

1.3 Implications for Property

24 ‘lapropriété capitaliste, et particulièrement la propriété foncière, cesse de plus en plus d’être un

de la richesse’ (Duguit 1920, v as translated by Mirow 2010, 199).

cept of property. Before we do that, however, it is necessary first to dispose of some

1.3.2.2 Common Law

The prohibition on a doctrine of malice in Bradford v Pickles is nothing less

justification is actionable in tort’ (Holmes 1894 as summarised by Taggart 2002, 175;

1.4 Overview of the Book

1.4.2 South America

1.4.3 North America

1.4.4 Asia, Africa, and Australia

Espagno D (2013) Introduction. Léon Duguit : de la Sociologie et du Droit. Lextenso, Le Mans

© Springer Nature Singapore Pte Ltd. 2019 35

LA PROPRIETE FONCTION SOCIALE

LA PROPRIETE FONCTION SOCIALE

J’ajoute une observation importante : dans cette étude je considèrerai exclusive-

I add an important observation: in this study I will consider exclusively what

1 Cf Duguit, le droit social, le droit individuel, 2e edit. 1911, p. 17 et suiv.

3 Cf Duguit, le droit social, le droit individuel, 2e edit. 1911, p. 17 et suiv.

Enfin dans le système civiliste, la protection de l’affectation d’une chose à un but

9 Cf Notamment Jèze, Revue du droit public 1909, p. 193.

10 Ed: i.e. the state.

16 Voir l’appendice IV, p. 196.

17 See appendix IV, p. 196.

18 Cf Jugement du tribunal de Bordeaux, 27 Novembre 1908, Sirey 1910 II, p. 230.

19 Ed: the state.