Volume 80 | Issue 3 Article 7
The Social Function of Property in Brazilian Law
Alexandre dos Santos Cunha
Alexandre dos Santos Cunha, The Social Function of Property in Brazilian Law, 80 Fordham L. Rev. 1171 (2011), http://ir.lawnet.fordham.edu/flr/vol80/iss3/7
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THE SOCIAL FUNCTION OF PROPERTY IN BRAZILIAN LAW
Alexandre dos Santos Cunha* INTRODUCTION The idea that rights serve a social function was first introducedinto Brazilian legal culture about a century ago. Although the concept is historically linked to the French scholar Léon Duguit, the Brazilian version is distinct and does not share these French origins. Twentieth-century Italian jurists Pietro Cogliolo and Enrico Cimbali, who both exerted overwhelming influence over the so-called “Renovators” of Brazilian Private Law, are primarily responsiblefor Brazil’s version.1 Unlike Duguit, Cogliolo and Cimbali construed the concept of a social function as a justification for imposing only external limits on the exercise of rights.2 Consequently, Brazilian courts have never considered Duguit’s understanding of the social function of property as a source of internal limitations. The concept of the social function of rights first appeared in theBrazilian Constitution in 1934, and has become considerably stronger since the country adopted a new Civil Code in 2002. This Essay focuses on the 2002 Code’s impact on the way jurists and courts understand the concept, especially with respect to the social function of property. This Essay is divided into four parts. Part I presents a brief history of Brazilian property law, Part II discusses thesocial function of property as a legal principle, Part III discusses it as a structural element of property, and Part IV discusses it as a structural element of rights.
* J.D., LL.M., S.J.D (Federal University of the State of Rio Grande do Sul—UFRGS, Porto Alegre, Brazil), Researcher at the National Institute for Applied Economic Research—IPEA, Brasília, Brazil. This Essay was originallytranslated from Brazilian Portuguese by Andrei dos Santos Cunha. 1. Cogliolo’s most influential work was his book Filosofia del Diritto Privato (The Philosophy of Private Law), published in 1912. Cimbali’s most influential work was his book Nuova fase del Diritto Civile nei rapporti economici e sociali (The Transformation of Civil Law in Economic and Social Relations), published in 1907. 2. JudithHofmeister Martins-Costa, Reflexões Sobre o Princípio da Função Social dos Contratos, in O DIREITO DA EMPRESA E DAS OBRIGAÇÕES E O NOVO CÓDIGO CIVIL BRASILEIRO 218, 218–48 (Alexandre dos Santos Cunha coord., 2006). Cogliolo and Cimbali’s understanding developed from the ideas of German jurist Otto von Gierke. See id.
FORDHAM LAW REVIEW I. A BRIEF HISTORY OF BRAZILIAN PROPERTY LAW[Vol. 80
Portugal’s occupation of Brazil is a unique episode in the history of the European colonization of the Americas. Unlike Spain, Portugal applied a model of absolute centralized administration to her newly acquired territories, instead of promoting colonial institutions. The colonies utilized the same political, administrative, and judicial organization and the same legal norms—especiallythe Ordenações do Reino (the Kingdom’s Legal Rules)—as the metropolitan territories. Brazil and Portugal’s legal professionals were educated at Coimbra University in Portugal.3 Indeed, the Portuguese Crown considered the Brazilian territory as integral a part of its property as the Moorish territories that the Kingdom had reclaimed in the eleventh and fourteenth centuries. As a result, the...