Origins of the Social Function of Property in Chile
Matthew C. Mirow
Florida International University (FIU) - College of Law
May 1, 2011
Fordham Law Review, Vol. 80, pp. 1183-1217, 2011
Florida International University Legal Studies Research Paper No. 11-12
Numerous countries in Latin America have constitutions that incorporate a social-function or social-obligation norm in their definitions of property. Scholars familiar with the broad-sweeping social legislation of the Mexican Constitution of 1917 might speculate that Mexican constitutional provisions were the intellectual source for other Latin American constitutions that define property in terms of a social function. In fact, the origin of the social function in property in the Southern Cone was not an intellectual imperial imposition from the North, in this case Mexico, but rather was the product of the transmission of European, notably French, ideas about the social function. These ideas migrated to the region through the works of Léon Duguit, a law professor from Bordeaux, who wrote and lectured extensively on law and constitutional theory in the early 1900s. Duguit’s lectures in Buenos Aires in 1911 and their subsequent publication are the earliest structured exposition of the social function of property. These lectures spread the idea of the social function of property to many areas of the world, and they produced direct effects in the Southern Cone.
In 1925, Chile was one of the first countries in Latin America to adopt a social-function limitation on property. This study traces the importance of Duguit’s work in the construction of the property provisions of the Chilean Constitution of 1925. This contribution notes the shift from the earlier expressions of property as an absolute right, as found in the Constitution of 1833, to the language of the Constitution of 1925 that submits property to “the maintenance and progress of the social order.” It tracks the debates in the drafting committees to expose the various concepts of property open to the drafters of the constitution and links these concepts to various broader political stances. The intervention and guidance of President Alessandri in adopting a social-function definition of property are placed into their political context.
In closing, the study contributes to the intellectual and political history of the social-function norm. It assesses the legacy of the social-function norm in Chile with particular reference to land reform or agrarian reform until the insertion of the term "social function" into Pinochet's Constitutional Act Number 3 of 1976 and the Chilean Constitution of 1980. It concludes that the social function of property was reinterpreted by both the left and right in Chile to meanings that had little to do with Duguit's original understanding of the concept.
Number of Pages in PDF File: 35
Keywords: property, social function, social obligation, social norm, Duguit, Alessandri, Pinochet, Chile, constitutional property, land reform, agrarian reform, Latin America
JEL Classification: K1, K11, N56, N66, Q15Accepted Paper Series
Date posted: May 18, 2011 ; Last revised: December 28, 2011
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