Léon Duguit and the Propriété Function Sociale

Abstract

The dominant modern conception of private property has been and is liberal. Liberalism concerns itself with promoting and protecting freedom of choice for the individual—natural or legal—and groups of them. Private property is liberalism’s vehicle for achieving that objective—conferring choice—in the allocation and control of goods and resources—natural or manufactured, tangible or intangible—among individuals. Yet the last 35 years, and longer, depending on how one understands the scholarship, stand witness to an explosion of property theory literature, much of it focusing upon what has come to be known as property as social relations or the progressive property movement. This ‘social shift’ recognises the importance of community interests in understanding both the concept of property and its invocation in real world legal systems. To a great extent, then, and depending upon how one looks at it, the property as social relations or progressive property view seems either an entirely American phenomenon or, whatever the phenomenon might be, it has been appropriated by American theorists. Seldom in this modern theorising, however, do we see mentioned the name of Léon Duguit. Yet, in the sixth of a series of lectures given in 1911 in Buenos Aires, Duguit coined the now axiomatic French phrase ‘propriété function sociale’ or the social function of property, meaning that rather than a right, property is a social function. And while the social function of property has come to have an importance, not only in France, but also in the civil law tradition itself, and while this notion has had wide, if un-attributed and seldom regarded, influence in the common law tradition and theory of property, Duguit’s lecture has rarely been translated into English into English and even more infrequently adverted to by the property as social relations/progressive property movements.

Parts of this chapter are republished with the kind permission of the University of New South Wales Law Journal and of the Monash University Law Review (Paul Babie, Sovereignty as Governance: An Organising Theme for Australian Property Law, 36(3) University of New South Wales Law Journal 1075 (2013), and Paul Babie, Climate Change is Eco-Slavery: A Climate Future of Australian Property Law, 43 Monash University Law Review 35 (2017)). (http://www.unswlawjournal.unsw.edu.au/wp-content/uploads/2017/09/36-3-1.pdf) (https://www.monash.edu/__data/assets/pdf_file/0007/1092670/02_Babie.pdf).