The right of property and its social function

AuthorErida Pejo
PositionUniversity of Tirana
Pages32-44
Vol. 3 No. 3
November 2017
Academic Journal of Business, Administration, Law and Social Sciences
IIPCCL Publishing, Graz-Austria
ISSN 2410-3918
Acces online at www.iipccl.org
32
The right of property and its social function
PhD Erida Pejo
University of Tirana
Abstract
Rights of property are the main prerequisites for the existence of any political society,
as it is an objective necessity for their normal functioning and continuity. Property and
right of property are the constituent of autonomous life in the realization of the world
of individual or collective goals, without the protection and guarantee of which, it
is o en stated that the respect and enjoyment of the entirety of other constitutional
rights can not be imagined. Rights of property are presented and considered as one
of the most important issues of legal and political doctrines, and it represents one of
the fundamental issues of national and international policy.
The classic liberal property concept has dominated the modern legal and political
debates and imagination. The property institution is o en conceived as a quasi absolute
subjective right, a concept that, in the modern era, competes with alternative concepts
that have inf‌l uenced both state policies and modern legal culture and consciousness,
the consequences of which are ref‌l ected in legal systems. One of the most inf‌l uential
alternative concepts is the social function of property,1 of course in modern legal
culture the property is understood as an individual right, limited not only by the
rights of others, but also by the public interest. Thus, modern legal thinking, although
it regards it as a basic element of the normal functioning of the Rule of Law, the private
property institution has given a new emphasis to this right, altering the basis for the
a ribution of property power by the fact that, the relation of the individual to his/
her personality in a social organization, is considered as substantive to the juridical
order, therefore the volume of ownership power may not be more unconditional.
The social function can not be identif‌i ed with the external limitation of ownership
which is reserved to collectivity, but it is presented as an elitist, unifying expression of
the assumptions of legal qualif‌i cation, so as to identify the content of the considered
situation.2
In the doctrine it is o en argued that private property is indispensable for the ethical
development of the individual or for the creation of a social environment in which
people can progress as free and responsible agents, but that the property is no longer
considered a myth, which was considered inviolable, as was the case with Article 29
of the Albertin Statute.3
It is enough to bear in mind the Aristotelian argument, which stated that property
promotes virtues as prudence and responsibility, or Plato in his work "Republic"
1 Articulated by French lawyer Leon Duguit in a lecture held in Buenos Aires in 1911. In his argu-
ment, it was emphasized that the property has not only external borders, but also internal borders.
2 Quoted by Rodotà Stefano, in the book of Alpa Guido, Bessone Mario, Fusaro Andrea, “Poteri dei
privati e disciplina della proprietà”, Publishing house S.e.a.m., Rome 2002, pg. 379.
3 The Albertin Italian Statute, 1848, in its Article 29, sanctioned that, “All properties, without excep-
tion, are intangible. However, when a legally justif‌i ed public interest requires it, the properties may
either partially or completely divest it against a fair remuneration in conformity with the laws”.

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