Tierra yLibertad The Social Function Doctrine and Land Reform by oft14212


									   Tierra y Libertad: The Social
Function Doctrine and Land Reform
         In Latin America

        “Property Obliges”

Or, What do common lawyers really
 know about the civil law?

• The social function doctrine is a historical
  necessity resulting from land concentration in
  Latin America
• It was legitimized through the emergence of
  economic and social rights and the rise of
  socialism in the 20th century
• It has no analog in the common law and is not
  addressed in English comparative law literature
• It remains robust in Latin America in the face of
  new developments and challenges but lacks clarity

• The Ancient History Of Land Concentration
  and Reform
• Origins of Land Concentration in Latin
  America (precolonial and colonial)
• Competing Perspectives on the Role of
  Property in Human Social Organization
   – The Property Continuum
• The Modern Social Function Doctrine
• Recent Developments and Challenges

• All Roads Lead from Rome
  – Ager Publicus – Lands conquered by the
    Roman Empire to be redistributed to citizens
  – Instead, Ager Publicus was consolidated into
    large estates by the patricians – latifundios
  – Initiated a wave of failed “land reforms”
            468 B.C., the Lex Cassia
            376 B.C. Lex Licinia
            367 B.C. Lex Sextia
            133 B.C. Lex Sempronia

   Pre-Colombian Land Tenure
   Systems – Aztec, Inca, Maya
• Complex sophisticated conquering societies
  in which elites controlled the resource base
  – including land
  – Aztec
  – Inca
  – Maya

• Spanish co-option of indigenous tenure
  regimes facilitated conquest…and
  contributed to contemporary land
  distribution patterns

• Indigenous tenure served the ends of
  conquest as the Spanish simply substituted
  themselves for the indigenous elite

• Encomiendo and Repartimiento – limited
  land grants from the Crown in exchange for
  exploration and Conquest
  – A feudal model: life estate with the Crown
    retaining ultimate title
     • Adelantado from the Reconqusita
  – Included the labor or tribute from the labor on
    the land

• Reality was quite different: conquistadores
  treated as alienable property
• Life estate was extended to two, then three
  lives – ignoring and ultimately threatening
  the crown
• The latifundio had arrived in the new world

   Early Crown efforts at Land
• The manipulation of property rights by the
• New priorities: from conquest to settlement
• 1591 – Composición - New world’s first
  effort at land reform
  – Effort to regularize new world land rights
     • sanimiento
  – “amnesty” for latifundios

        Post-Colonial Land Tenure
   Hacienda replaces the Encomienda
      – Mid 1800s Mexico confiscates church lands
      – 1822: Argentina adopts emphyteusis laws
      – Mid 1800s Brazil abolishes seismarias law and
        adopts “posse”
   • On the eve of 20th Century - Results remain
     the same: lands concentrated in the hands of
     a powerful few
   • Converged with other political
     philosophical factors (rise of socialism)

      Competing Perspectives on the Role of
     Property in Human Social Organization

             The Property Continuum

Communal (Indigenous)

                    State (Regalia)
                                      Individual (alloidial)

• Regalia comes from transition from feudal
  to stateist social organization
• Hastened by the discovery of the Institutes
  of Justinian in 12 century and introduction
  of Roman law into feudal systems
• Concludes the king owns land in his
  capacity as representative of the state – not
  as senorio

   “All lands belong to the state, which may
  pass title to individuals, thus creating
  private property….”
             1917 Constitution of Mexico

   Enlightenment: Natural Law
• Law has a source independent of the state
• John Locke
  – The state exists as a matter of social contract
    with the consent of the governed
  – Property ownership arises from the labor or
    “sweat equity” one puts into land
  – The state’s role is to defend the individual’s
    right to that land

 Constitutionalization of Natural
        Law of Property
• 1789 – French Declaration of the Rights of
  – “Property, being an inviolable and sacred right,
    no one maybe deprived of it….”
• The United States Constitution, Article V
  – “Nor shall property be taken…”

 Codification of Natural Law of

• Article 544, Napoleonic Code of 1804
  – “Property is the right of enjoying and disposing
    of things in the most absolute manner…”

• Property becomes a matter of private civil

• The individual right of property thus entered
  the twentieth century on two formidable
  – The liberal constitution
  – The private civil law
   Legally cemented the inequitable land
  distribution in the region.
            Creating the need for

   The Modern Social Function
• Unequal land distribution plagued LatAm as
  it entered the 20th century
• Socialism emerged in Europe and elsewhere
  as a reaction to the excesses of capitalism
• Mexico’s 1917 constitution became world’s
  first “social constitution” and was the talk
  of Europe.
  – Tierra y Libertad

• A key socialist thinker in the juridical realm
  was the French Philosopher Leon Duguit

• In 1919 He argued that the liberal notion of
  state protection of private property can only
  be justified if the property serves a “social

             Property Obliges
 The inter-war German Weimar Republic
  Constitution put it most succinctly:
“Property obliges; It’s use must serve the good
  of the community.”
           - Article 153, Weimar Constitution

             Property Obliges
This is a qualitatively distinct view of the
 relationship between the state, its subjects
 and their property

  Under the liberal constitutional property
  model, owners are under no obligation to use
  their property for productive good

• Beginning with Mexico in 1917, through wars,
  coups and revolution, Latin American
  governments had ample opportunities to include
  social and economic rights in their constitutions
• Including the Duguitian notion of the social
  function of property
• Virtually every country in the region has at some
  point incorporated the doctrine into its
  constitutions, codes, agrarian law, and

• Each person has the following fundamental
  rights…to private property…as long as the
  property serves a social function.
   – Article 7, Constitution of Boliva
• Property is a social function which implies
   – Article 58, Constitution of Colombia

                 Civil Code
• the 1928 Mexican civil code describes
  – “as a social function not a subjective right”
• Bringing property into the realm of
  “objective” or public law
• Substantially undermining property’s
  private law status of inviolability

   Agrarian Reform Legislation
• Expropriation will be realized in the first
  place over those lands that do not comply
  with their social function.
     • 1964 Agrarian reform law, Costa Rica

  (A separate provision authorizes anyone to
  denounce lands that do not conform to the social
            - creating a third party right

• 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
  doctrine of the social function of property
  establishes that the right to property is
  simultaneously individual and social.
     • Constitutional Court of Colombia

            Executive Orders
• Private lands are subject to “the social
  function of providing for the agro-
  alimentary security of the country.”
     • - Presidential decree No. 1546, Venezuela

         “The War against latifundios is the
       key to the revolution.”
            » - Hugo Chavez, The Guardian, U.K.

     Recent Developments and
• Recently, some states eliminated social
  function from the their constitutions
  – Peru (1993)
  – Guatemala (1998)
  – Venezuela (1999)
     • But even in these countries it persists as doctrine

• Peru is a case in point
  – Social function can be found in 1920, 1933 and
    1979 constitutions
  – Dropped from the 1993 era constitution and
    replaced with “property is exercised in harmony
    with the common good and within the confines
    of the law.”
  – But…

       Peruvian Jurisprudence
• “When our Constitution guarantees the
  inviolable right to property and indicates
  that this right should be exercised in
  harmony with the public good…[it] does
  nothing more than refer to the social
  function that the law of property has as part
  of its essence.”
  – Sentencia 0048-2004, Peruvian Const. Tribunal

• In the 1980s the doctrine served as the
  engine of development policy
  – Opening the way for colonization and
    exploitation of frontier forests
  – Land not being cleared was not being put to
    productive use
  – Social function equated with land clearing for
    “productive use”
  – Led to massive deforestation

           New Develoments

• Environmental function of property
  – Costa Rican agrarian courts concluded that
    conservation can be productive use
• Socio-environmental function of property
  – Brazil considers not only the nature of
    production but its quality (e.g. labor standards)

            New Challenges
• How will this doctrine operate in the face of
  international expropriation standards under
  free trade agreement?


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