Liberalism and Property in Colombia: Property as a Right and Property as a Social Function

37 Pages Posted: 19 Oct 2014 Last revised: 16 Nov 2014

See all articles by Daniel Bonilla

Daniel Bonilla

Universidad de los Andes School of Law

Date Written: 2011

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. 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. 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. 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. These 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. The individualistic property system emerged from the liberal authoritarian state established with the Constitution of 1886. The mixed system (property as social function and individualist property) was born with the constitutionalization of the liberal interventionist state that occurred with Legislative Act 1 of 1936 (which amended the Constitution of 1886). 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.

Keywords: liberalism, Property, Colombia┬┤s legal system, Autonomy, Equality, and solidarity

Suggested Citation

Bonilla, Daniel, Liberalism and Property in Colombia: Property as a Right and Property as a Social Function (2011). Fordham Law Review, Vol. 80, No. 3, 2011. Available at SSRN: https://ssrn.com/abstract=2511398

Daniel Bonilla (Contact Author)

Universidad de los Andes School of Law ( email )

Carrera Primera # 18A-12
Bogota, DC D.C. 110311
Colombia

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