PROPERTY AND ITS CONSTITUTIONAL-LEGAL TREATMENT: A PATRIMONIAL OR FUNDAMENTAL RIGHT?

Abstract

Contextualization: The 1988 Brazilian Federal Constitution maintained the "social function of property" as one of the guiding principles of the economic order, yet also included it among fundamental rights. This dual inclusion supposedly creates a logical contradiction, intertwining the concept of property as an individual and eminently patrimonial right with its characterization as a fundamental right, which is inherently inalienable. The tension thus arises when attempting to define the boundaries of this social function without undermining the individual right.

Objectives: To investigate whether a logical contradiction exists between the individual and fundamental understandings of the right to property.

Methodology: The research employed an inductive methodology.

Results: The philosopher John Locke posits property as a natural right, and the social contract as an agreement forged by free individuals. This perspective would seemingly conflict with the understanding of property in its fundamental sense. However, from the perspective of jurist Luigi Ferrajoli, no such contradiction exists, as the problematic nature of the issue is merely interpretative. The Italian jurist postulates a distinction between the fundamental right "to property" and the private right "of property." Ferrajoli's theory is motivated by what he identifies as an erroneous assimilation between Locke's definitions of liberty and property. Therefore, it is concluded that the perceived contradiction is merely apparent, and the concept coexists harmoniously within the legal system.