Social Function of Property and Distributive Justice: between Duguit's Functionalism and Justice as Fairness in Rawls

Abstract

With the functionalization of Private Law, the exercise of the right to property has become conditioned to a social function. This position has particular foundation in the functionalism of Léon Duguit. Nevertheless, the right to property is still enshrined as a fundamental human right in national and international documents. Thus, doubts arise regarding the compatibility between the concept of social function and the right to property as a fundamental human right. In this scenario, it is important to confront Duguit's functionalism with Rawls's theory of justice as fairness, which preserves the individual's will in the face of the majority's will. The research problem consists of analyzing to what extent Rawls' theory of justice as fairness can constitute an alternative to Léon Duguit's functionalist foundation for the reconciliation between the fundamental right of property and its social function. For this, the research makes use of bibliographical research and review of national and international literature. In the first stage of the study, we seek to understand the movement of functionalization of property rights and the paradigm of property-duty. Afterwards, the basis for the right to property in Léon Duguit's theory is analyzed. In the third stage, the aim is to understand John Rawls' theory of justice as fairness. Finally, Rawls' theory is related to the right to property as a fundamental right. It is concluded that the concept of social function based on Duguit's rationality has difficulty in being compatible with fundamental rights, what does John Rawls' liberal-egalitarian rationality constitute an alternative or critical possibility to this foundation.