Léon Duguit and the Social Obligation Norm of Property: A Translation and Global Exploration

Babie, Paul (2019) Léon Duguit and the Propriété Function Sociale IN Babie, Paul, Viven-Wilksch, Jessica (Eds.) Léon Duguit and the Social Obligation Norm of Property A Translation and Global Exploration, Springer Singapore

U. of Adelaide Law Research Paper No. 2020-64

Posted: 29 Jun 2020

See all articles by P T Babie

P T Babie

Adelaide Law School, The University of Adelaide

Jessica Viven-Wilksch

Independent

Date Written: June 22, 2020

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.

Keywords: Legal change, Absolute right, Positivism, Duguit, Social obligation norm, Property theory, Progressive property

JEL Classification: K11

Suggested Citation

Babie, Paul T. and Viven-Wilksch, Jessica, Léon Duguit and the Social Obligation Norm of Property: A Translation and Global Exploration (June 22, 2020). Babie, Paul (2019) Léon Duguit and the Propriété Function Sociale IN Babie, Paul, Viven-Wilksch, Jessica (Eds.) Léon Duguit and the Social Obligation Norm of Property A Translation and Global Exploration, Springer Singapore , U. of Adelaide Law Research Paper No. 2020-64, Available at SSRN: https://ssrn.com/abstract=3632602

Paul T. Babie (Contact Author)

Adelaide Law School, The University of Adelaide ( email )

Adelaide, 5005
Australia
+61 8 8313 5521 (Phone)

Jessica Viven-Wilksch

Independent ( email )

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