In the field of property rights, Latin America’s modernization process has been broadly influenced by three theories: privatization, nationalization and socialization. At the beginning of their independence, Latin American countries completely transplanted Western political systems and accepted an absolutely liberal view of property rights, exacerbating social problems such as uneven land distribution and social polarization of rich and the poor in the region. The theory of socialization of property rights insists on the concept of absolutely inviolable property rights restricted by social interests and the social obligations of property ownership. The idea of socializing property rights owes much to the French legal scholar Duguit, expounded through his theoretical system of the social function of property rights. Influenced by positivism and legal sociology, Duguit’s theory was also inspired by scholars such as Hauriou and Hayem. Pre-empting the German Weimar Constitution of 1919, Mexico had written the social rights clause into the constitution of 1917 to protect the interests of workers and farmers. The socialization of property is a product of historical developments in Mexico, and its purpose was to redistribute land to solve the phenomenon of land concentration. Enduring authoritarian rule and the latifundia system intensified contradictions in Mexican society, leading to the outbreak of Revolution of 1910, objectively promoting the emergence of socialized concept of property. The shared-land tradition of Mexican Indians also weakened the region’s recognition of the idea of absolute property rights. In 1911, Duguit gave six lectures at the law school of the University of Buenos Aires, Argentina, systematically proposing his theory of the social function of property rights. After the 1920s and 1930s, his theory gradually influenced the practice of Latin American property socialization. For example, the Chilean Constitution of 1925 and the Colombian Constitution of 1936 emphasized that the law could restrict private property based on the public interest. Although much of the land reform in Latin America before the 1980s did not achieve expected results, it is undeniable that the doctrine of the social function of property rights provides a solution to the land problems of various countries. Although Mexico was the earliest practitioner of property socialization, it was Brazil that pushed this theory to development. The theory of the social function of property rights was first sprouted during the formulation of the Brazilian Civil Law. It was established in the 1934 Constitution, developed in the 1988 Constitution, and implemented in the specific provisions of the 2002 Brazilian Civil Code. Although the Civil Law of 1916 chose the liberal property path at last, the idea of property socialization was still brought up for discussion during draft conferences. As of the 1988 Constitution, Brazil expanded the social function principle from purely external restrictions to internal restrictions, emphasizing the protection of the environment and labor interests, and giving property to ecological functions. By 2002, the new Brazilian Civil Law not only included environmental benefits into the protection, but also stipulated that landless farmers can obtain land through their own work to make the land productive, and the civil contract is regulated by social interests. The process of property rights theory spreading and growing in Latin America is also a process of the further development of the modernization in Latin American countries. In the century after their independence, most Latin American countries chose the absolute private property theory, which intensified social contradictions and thus suffered terribly. Similarly, some countries chose to nationalize property rights in the 20th century, such as Peru during the reforms of Velasco and Chile during the rule of Allende, experienced social stagnation and even political turmoil. Countries that have followed the path of socializing property rights, whether in Mexico or Brazil, have achieved social progress to some extent. Although the theory of social function property rights has not fundamentally solved social problems in Latin America, it has eased the contradiction between humans and land and also the contradictions between humans and nature to a certain extent. Previous research on property rights theory has mostly started from the perspective of Western countries. As a region where rule of law was developed late, Latin America's development experience in the property system provides a valuable perspective for the study of the theory of property rights.
夏立安 周晓帆. 财产权社会功能学说的产生与发展：以拉美的法律发展为例[J]. 浙江大学学报(人文社会科学版), 2020, 6(4): 125-.
Xia Li’an Zhou Xiaofan . The Emergence and Development of the Socialization of Property Rights：Taking Latin American Legal Development as an Example. JOURNAL OF ZHEJIANG UNIVERSITY, 2020, 6(4): 125-.