Origins of the Social Function of Property in Chile

M C. Mirow, Florida International University College of Law


In 1925, Chile was one of the first countries in Latin America to adopt a social-function limitation on property. This study traces the importance of Duguit’s work in the construction of the property provisions of the Chilean Constitution of 1925. This contribution notes the shift from the earlier expressions of property as an absolute right, as found in the Constitution of 1833, to the language of the Constitution of 1925 that submits property to “the maintenance and progress of the social order.” It tracks the debates in the drafting committees to expose the various concepts of property open to the drafters of the constitution and links these concepts to various broader political stances. The intervention and guidance of President Alessandri in adopting a social-function definition of property are placed into their political context. In closing, the study contributes to the intellectual and political history of the social-function norm. It assesses the legacy of the social-function norm in Chile with particular reference to land reform or agrarian reform until the insertion of the term "social function" into Pinochet's Constitutional Act Number 3 of 1976 and the Chilean Constitution of 1980. It concludes that the social function of property was reinterpreted by both the left and right in Chile to meanings that had little to do with Duguit's original understanding of the concept.