Document Type
Article
Publication Date
2011
Abstract
This Article offers suggestions about the appropriate definition of the five words "the social function of property"-so pregnant with meaning and promise, yet for many so ill defined. Although the Article does not address the development of the notion of the social function of property within a particular national tradition or experience, it makes reference to a wide range (with respect both to location and type of property) of examples from across Latin America and the Caribbean. In doing so, the Article seeks to do three things. First, it makes the normative case that "the social function of property" can usefully be understood as a notion that aims to secure the goal of human flourishing for all citizens within any state. This is important inasmuch as scholars, legislators and government officials, as well as activists and others for whom this notion matters, need constantly reexamine and clarify what is meant when we talk about property's social function, remembering that while it may originally have been conceived by Leon Duguit and others-to constitute a notional counterbalance to an uncritical affirmation of individual private property rights, it is not always so used exactly because the phrase is not self-defining and invites many interpretations. For example, one English language analysis of property's social function, written by a Brazilian social scientist working in the United States, takes a distinctly neoliberal cast. The author argues, in no uncertain terms, that many interpretations of the concept have erred for their failure to acknowledge that property's social function is best served by focusing on overall economic production and efficiency in a given society, allowing the market's invisible hand to work its magic.
Second, and furthermore, this is a propitious time to refine and redefine what we understand to be property's social function in light of the explosion of types of property. Third, as in much of the world, the region is preoccupied with questions of sustainability and environmental crises from uncontrolled human activity. To make the case that human flourishing provides a powerful justification for the concept of property's social function, this Article looks to numerous examples from across Latin America and the Caribbean.
Recommended Citation
80 Fordham L. Rev. 1089 (2011).