Duguit, et après ? Droit, propriété et rapports sociaux

• Autores: Thomas Boccon Gibod
• Localización: Revue internationale de droit économique, ISSN 1010-8831, Vol 28, Nº. 3, 2014 (Ejemplar dedicado a: Repenser la propriété), págs. 285-300
• Idioma: francés
• Títulos paralelos:
  • Duguit and Beyond. Rights, Property, and Social Relations
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• Resumen
  • English

    This paper suggests that radical alternative conceptions of property should not only examine the relationship between owners and things that are owned, but also the whole set of social relationships that are transformed by the property relationship. To examine this problem, it draws on a presentation of the famous conception of property developed at the beginning of the previous century by the famous French lawyer Léon Duguit (1859-1928). It then aims to reflect on possible lessons that could be learned from his project. Duguit, generally remembered as one of the inventors of the notion of public service, intended a very radical critique of property from a sociological perspective. His project could therefore be qualified as a pre-Kelsenian socio-positivism. Drawing widely on the work of his Bordeaux colleague Émile Durkheim on the “division of social labor,” he deemed property should not be considered as a natural consequence of individual liberty, but, on the contrary, as part of inter-individual relationships and, ultimately of social solidarity. Hence, property should not be founded on individual free will, but on its “social function.” This radical statement, however, cannot hide the fact that this function appears to be less an objective fact than the very expression of Duguit’s claim for social justice. This explains many of the difficulties he encountered in defining precisely what it means, how it works and by whom it should be determined. Duguit’s ambitious attempt to rework the foundations of law, beyond the distinction between public and private law, thus comes up against the very uneasy articulation between facts and values. Finally, he seems to reconsider the sociological basis of the rule of law in a subjectivist light (referring to “individual consciousness”), counterbalanced by universal conceptions of justice that can be traced back to Saint Thomas Aquinas. Yet this appears to be insufficient in defining the social function precisely: consequently, his entire project tends to appear as a mere transformation of the sole justification of property, rather than as an actual limitation of it. Duguit’s work, as a matter of fact, did not serve to justify the first French nationalization, and even the modern notion of public service is only partially based on his views. However, the limits of Duguit’s project should not lead to condemning it once and for all; on the contrary, his courageous attempt to face the problem of justification and enforcement of social justice can still be considered as a source of inspiration for social and political thinkers. The idea that property lies ultimately, not in a relation to things but in a relation between people can thus be illustrated in various ways in contemporary works of philosophy, sociology, and political economy. First of all, it leads to recent attempts by André Orléan, a member of the French School of Regulation, to criticize the notion of value that can be found in standard political economy. In his view, value is to be considered not as a substantial property of goods, but as the result of the dynamics of social interactions in a given market. Consequently, appropriation, far from being the pure expression of free will, appears to be led by unconscious social imitation. On the one hand, this analysis goes beyond Duguit’s views in so far as it draws more radical conclusions from Durkheim’s sociology: the actual basis of individual appropriation is not social solidarity, but the social dynamics of valuation. Social interdependency does not spontaneously appear as harmonious but, on the contrary, the failure of financial markets to self-regulate calls for an improved version of State interventionism. On the other hand, however, this theory appears to be not as ambitious as Duguit’s, since it does not imply any consistent conception of social justice, nor does it reflect upon the role of law in social relationships. Thus, another and even more radical interpretation can be illustrated in recent public decisions to publically destroy massive illegal ivory stocks in order to confront the rising illegal traffic and the increase of elephant killings in Africa. These gestures illustrate a concrete involvement of public institutions in the social dynamics of valuation. To fully understand them, one is forced to recognize their symbolic dimension, that is to say their self-attested, performative claim that these parts of animals cannot be recognized as having any value anymore, and consequently, do not constitute goods that can be appropriated. Granted, these public destructions do not represent the only way to fight illegal traffic and poaching, but they demonstrate in a very pure way that the very conditions of existence of markets and properties are not only social, but even public, and that they therefore involve political commitments. An anthropological look at modern social practices thus reveals that the search for alternative conceptions of property should also include institutional dimensions of social life.

  • français

    On présente ici la célèbre critique duguiste de la propriété à partir de ses fondements sociologiques. On revient ainsi sur les difficultés rencontrées par Duguit afin de défendre sa thèse selon laquelle la propriété serait une « fonction sociale » : l’exigence de solidarité sur laquelle est censé se fonder le droit se révèle moins un fait objectif qu’un réquisit axiologique, et Duguit se trouve donc en peine de définir précisément l’articulation entre faits et valeurs, qui se trouve au principe de son entreprise de refondation du droit. On montre alors que l’intérêt du geste duguiste se trouve bien pourtant dans cette tentative inaboutie de réinscrire la notion de propriété privée dans son cadre social, ce qui constitue une critique des relations de pouvoir propres à la société de marché. L’originalité de Duguit réside alors, encore aujourd’hui, dans sa tentative d’incorporer les institutions publiques à la critique efficiente d’une telle société.