Abstract
This chapter addresses the practicalities and possibilities of Leon Duguit’s social function norm under neo-liberalism. Addressing Duguit’s articulation of the social function norm through a contemporary lens, this chapter argues that the steady shift towards individualistic property relations limits the social function norm’s application. Drawing from key thinkers on neoliberalism, this chapter balances contemporary issues in property, with Duguit’s own evolutionary assumptions on property rights. We conclude by acknowledging the difficulties in finding common ground between the social function norm and contemporary, neoliberal approaches to property, before identifying one major exception. Through Bonnie Honig’s idea of ‘public things’, we argue that within the public space there is a potential to utilise the social function norm to aid ideas of community and property. This nuanced application of Duguit locates a nexus where social obligations can function under neoliberalism.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
For a study on Germany see Raff (2004).
- 2.
Durkheim’s writings attest to his concern about moral anarchy (Anomie) and the potential for reactionary groups such as Social Catholics to define key concepts in society.
- 3.
In saying this I should also highlight that Duguit described Durkheim’s concept of ‘collective conscience’ as a pure hypothesis. This is one of the reasons Duguit cannot be considered a pure follower of the Durkheimian school.
- 4.
In his lecture ‘Property as a Social Function’ Duguit goes out of his way to distance himself from Marxism. In a rather unconvincing digression, he notes: ‘I am also not looking for whether, as some claim in some schools, there is an irremediable opposition between those who hold wealth, and those who don’t, between the owner-class and the proletarian class, the latter needing to expropriate and soon annihilate the former. But I cannot nonetheless restrain myself from saying that according to me these schools have completely erroneous version of things: the structure of modern societies is much more complex. In France, notably, a large number of persons are both owners and worker. It is a crime to preach the struggle between classes, and I think we are walking not towards the annihilation of one class by another, but to the contrary towards a regime of coordination and a process of creating hierarchy of classes.’ See also Duguit’s debate with Proudhon about trade unionism and his hostility to public service strikes (Jones 2002, 167–168).
- 5.
Translation my own.
- 6.
Translation my own.
- 7.
This perspective also led Duguit to oppose unionism and strike actions in the public service: ‘The rulers have a compulsory mission to which they cannot avoid…Since this mission is obligatory, institutions by them cannot strike or unionize’ (Jones 2002, 169–170 [translation my own]).
- 8.
Translation my own.
- 9.
Translation my own.
- 10.
Translation my own.
- 11.
Translation my own.
- 12.
Translation my own.
- 13.
Jones notes: ‘Duguit sought to reconstruct private law on the public model, which explains why his ideas provoked most controversy when he turned his attention to private law.’.
- 14.
Translation my own.
- 15.
Translation my own.
- 16.
Translation my own.
- 17.
On the relationship between choice and private property see: Babie (2011).
- 18.
This perspective has been enormously influential and its focus on individual preference satisfaction found a champion in liberal and neoliberal capitalism. While not trying to position Blackstone as the ultimate source of contemporary thinking, his description of property as dominion is widely held in society today. See Babie et al. (2018).
- 19.
For more examples see Mirow (2010, 208).
- 20.
Duguit adopted this from Durkheim. For more on Durkheim see Hinkle (1976).
- 21.
See Babie et al. (2018).
- 22.
- 23.
Note that Humphrys directly challenges part of this narrative by positioning the Labor Part in Australia as the key driver of neoliberalism.
- 24.
Although Humphrys also points out different instances where the authors repeat the US/UK origin story described above (Humphrys 2015, 778).
- 25.
While the land is held under a pastoral lease it is non exclusive and exists alongside native title claims. At 193 Graham describes one perspective on social and ecological obligation: “What is radical about Purvis’ farming practice is that rather than regarding land as the non-specific thing and rather than ‘battling’ the land, Purvis transformed his relationship to the land as one of reciprocity and developing knowledge.” See also Sinatra and Murphy (1999). On the notion of adapting practices to the land see Jackson and Berry (1985) and Jackson (2011). For an excellent survey of Australian first nations ideas of stewardship and obligation see Weir (2009).
References
Babie P (2011) Choices that matter: three propositions on the individual, private property, and anthropogenic climate change. Color. J. Int. Environ. Law Policy 22:323–356
Babie P, Burdon P, da Rimini F (2018) The idea of property: an introductory empirical assessment. Houst. J. Int. Law 40:797
Blackstone W (1979) Commentaries on the laws of England. University of Chicago Press, Chicago
Bonilla D (2011) Liberalism and property in Columbia: property as a right and property as a social function. Fordham Law Rev 80(3):1135–1170
Bosselmann K, Taylor P (eds) (2017) Ecological approaches to environmental law. Edward Elgar Pub, Cheltenham
Brown W (2017) Undoing the demos: Neoliberalism’s Stealth revolution. Zone Books, Cambridge
Burdon PD (2014) Earth jurisprudence: private property and the environment. Routledge, London
Cohen FS (1954) Dialogue on private property. Rutgers Law Rev. 9:357–387
Cole DH (2002) Pollution and property: comparing ownership institutions for environmental protection. Cambridge University Press, Cambridge
Cunha AS (2011) The social function of property in Brazilian law. Fordham Law Rev. 80(3):1171–1181
Duguit L (1889) Le Droit Constitutionnel et la Sociologie. RIE 18:484–505
Duguit L [trans: Viven-Wilksch J] (2019) Sixth Lecture — La Proprieté Fonction Sociale. In: Babie P, Viven-Wilksch J (eds) Léon Duguit and the Social Obligation Norm of Property: A Translation and Global Exploration. Springer, New York, pp 35–61
Elliot TS (2013) The waste land. Martino Fine Books, Eastford
Engels F (1978) Socialism: utopian and scientific. In: Tucker RC (ed) The marx-engels reader. WW Norton & Company, New York, pp 683–717
Foucault M (2010) The birth of biopolitics: lectures at the collège de France, 1978–1979. Picador, London
Freyfogle ET (2003) The land we share: private property and the common good. Island Press, San Francisco
Garrett B (2015) The privatisation of cities public spaces is escalating. It is time to take a stand. The guardian. https://www.theguardian.com/cities/2015/aug/04/pops-privately-owned-public-space-cities-direct-action. Accessed 27 Aug 2018
Graham N (2011) Lawscape: property, environment, law. Routledge-Cavendish, London
Grinlinton D, Taylor P (eds) (2011) Property rights and sustainability: the evolution of property rights to meet ecological challenges. Brill, Leiden
Hale RL (1923) Coercion and distribution in a supposedly non-coercive state. Polit Sci Q 38:470–494
Hale RL (1943) Bargaining, duress and economic liberty. Columbia Law Rev 43:603–628
Harris JW (1996) Property and justice. Oxford University Press, Oxford
Harvey D (2005) A brief history of neoliberalism. Oxford University Press, Oxford
Hinkle RC (1976) Durkheim’s evolutionary conception of social change. Sociol Q 17:336–346
Honig B (2017) Public things: democracy in disrepair. Fordham University Press, New York
Howe MD (ed) (1953) Holmes-Laski letters, vol 1. Harvard University Press, Cambridge
Humphrys E (2015) The corporatist origins of neoliberalism: Australia’s accord, the labour movement and the neoliberal project. PhD Thesis, University of Sydney
Jackson W (2011) Consulting the genius of the place: an ecological approach to a new agriculture. Counterpoint, Berkeley
Jackson W, Berry W (1985) Meeting the expectations of the land: essays in sustainable agriculture and stewardship. North Point Press, New York
Jones HS (2002) The French state in question. Cambridge University Press, Cambridge
Kennedy D (1991) The stakes of law, or Hale and Foucault! Leg Stud Forum 15:327–365
Klein N (2008) The shock doctrine: the rise of disaster capitalism. Picador, London
LaCapra D (1985) Emile Durkheim: sociologist and philosopher. Cornell University Press, Ithaca
Mirow MC (2010) The social-obligation norm of property: Duguit, Hayem, and Others. Fla J Int Law 22:191–226
Morgan G, Nelligan P (2018) the creativity hoax: precarious work in the gig economy. Anthem Press, London
Nedelsky J (1990) Law, boundaries and the bounded self. Representations 30:162–189
Nedelsky J (2013) Law’s relations: a relational theory of self, autonomy, and law. Oxford University Press, Oxford
Ostrom E (1990) Governing the commons: the evolution of institutions for collective action. Cambridge University Press, Cambridge
Peck J, Theodore N, Brenner N (2009) Neoliberal urbanism: models, moments, mutations. SAIS. Rev Int Aff 29(1):49–66
Peck J, Theodore N, Brenner N (2010) Postneoliberalism and its malcontents. Antipode 41:94–116
Punter JV (1990) The privatisation of the public realm. Plan Pract Res 5(3):9–16
Raff M (2004) Private property and environmental responsibility, a comparative study of German real property law. Kluwer Law International, The Hague
Robertson J (2017) Government’s privatisation push extends to $9 billion property sale pipeline. Sydney Morning Herald. https://www.smh.com.au/national/nsw/governments-privatisation-push-extends-to-9-billion-property-sale-pipeline-20170904-gyagew.html. Accessed 27 Aug 2018
Sinatra J, Murphy P (1999) Listen to the people, listen to the land. Melbourne University Press, Melbourne
Singer JW (1982) The legal rights debate in analytical jurisprudence from Bentham to Hohfeld. Wis Law Rev 6:975–1060
Singer JW (1992) Re-reading property. N Engl Law Rev 26:711–730
Singer JW (2000) Edges of the field. Beacon, Boston
Singer JW, Beerman JM (1993) Social origins of property. Can J Law Jurisprud 6:217–248
Thatcher M (2013) Margaret thatcher: a life in quotes. The guardian. https://www.theguardian.com/politics/2013/apr/08/margaret-thatcher-quotes. Accessed 27 Aug 2018
Touraine A (2002) From understanding society to discovering the subject. Anthropol Theory 2(4):387–398
Voyce M (2003) The privatisation of public property: the development of a shopping mall in Sydney and its implications for governance through spatial practices. Urban Policy Res 21(3):249–262
Weir JK (2009) Murray River country: an ecological dialogue with traditional owners. Aboriginal Studies Press, Canberra
Zweig S (2013) The world of yesterday. University of Nebraska Press, Lincoln
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2019 Springer Nature Singapore Pte Ltd.
About this chapter
Cite this chapter
Burdon, P.D., Stewart, J.G. (2019). Can Social Property Survive Under Neoliberalism?: A View from Australia. In: Babie, P., Viven-Wilksch, J. (eds) Léon Duguit and the Social Obligation Norm of Property. Springer, Singapore. https://doi.org/10.1007/978-981-13-7189-9_15
Download citation
DOI: https://doi.org/10.1007/978-981-13-7189-9_15
Published:
Publisher Name: Springer, Singapore
Print ISBN: 978-981-13-7188-2
Online ISBN: 978-981-13-7189-9
eBook Packages: Law and CriminologyLaw and Criminology (R0)