Abstract

http://ssrn.com/abstract=1960022
 


 



The Social Function of Property: A Comparative Law Perspective


Sheila Foster


Fordham University School of Law

Daniel Bonilla


Universidad de los Andes School of Law

November 15, 2011

Fordham Law Review, Vol. 80, p. 101, 2011
Fordham Law Legal Studies Research Paper No. 1960022

Abstract:     
The classical liberal conception of property dominates the modern legal and political imagination. The idea that property is a subjective and nearly absolute right controls the way in which much of modern law and politics understand this institution. Despite its ubiquity in the modern legal and political consciousness, the classical liberal conception of property competes with, and is challenged by, other forms of imagining the institution. One of these alternative concepts, and perhaps one of the most suggestive and influential of the twentieth century, is the social function of property. This concept was articulated paradigmatically by the French jurist León Duguit in a set of six lectures given in Buenos Aires in 1911. According to this view, property has internal limits - not just external ones as in the case of the liberal right to property.

The concept of the social function of property has been incorporated by a significant number of European and Latin American legal systems and been instrumental in the political struggle that has occurred in some countries to achieve a fairer distribution of land. In Latin America, for example, the social function of property was included in several constitutions and has been instrumental in justifying the agrarian and urban reform projects developed in several countries in the region. In the United States, while no legal norm includes explicitly the words “social function of property,” some U.S. legal scholars consider that a “social obligation” norm does exist in U.S. law, albeit perhaps only at the margins of property jurisprudence. According to this norm, property owners have social responsibilities to others that extend beyond the highly individualized, and atomized, conventional account of property rights.

This essay is an introduction to a symposium held at Fordham School of Law in which an impressive group of scholars from the United States and Latin America convened to examine the contemporary interpretations and use of the social function of property in Latin America and its exclusion or marginal inclusion in the U.S. The symposium papers highlight and examine the interpretations of the social function of property articulated during the last two decades by some Latin American constitutional courts, as well as the symbolic and material effects that these readings have had in the region. As many of the papers published in this issue demonstrate, the social function of property has had interesting conceptual histories and applications in Latin America. The papers also scrutinize and analyze the concepts and institutions through which the social function of property has entered the U.S. legal system and explore why these concepts and institutions have had such a limited influence. Finally, the papers identify the tensions and connections that the social function of property has with relatively new legal concepts like the ecological function of property, and to explore its connections with various historical discourses and social structures in the U.S. and Latin America.

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Date posted: November 15, 2011  

Suggested Citation

Foster, Sheila and Bonilla, Daniel, The Social Function of Property: A Comparative Law Perspective (November 15, 2011). Fordham Law Review, Vol. 80, p. 101, 2011; Fordham Law Legal Studies Research Paper No. 1960022. Available at SSRN: http://ssrn.com/abstract=1960022

Contact Information

Sheila Foster (Contact Author)
Fordham University School of Law ( email )
140 West 62nd Street
New York, NY 10023
United States
212-636-7771 (Phone)
212-636-6899 (Fax)
Daniel Bonilla
Universidad de los Andes School of Law ( email )
Carrera Primera # 18A-12
Bogota, D.C. 110311
Colombia
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