Duguit, et après ? Droit, propriété et rapports sociaux

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 relation. To examine this problem, it draws on a presentation of the famous conception of property elaborated at the beginning of the previous century by the famous French lawyer Léon Duguit (1859-1928), and then intends to reflect on possible lessons that could be learnt from his project. Duguit, generally recalled as one of the main inventors of the notion of public service, intended a very radical critique of property on a sociological ground. 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 ?divison of social labor?, property should not be considered as a natural consequence of individual liberty, but, on the contrary, as part of inter-individual relationships and, eventually, 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 such function appears to be less an objective fact than the very expression of Duguit?s claim for social justice ; which explains many of the difficulties he encountered in order to define precisely what it means, how it works and by whom it should be determined. Duguit?s ambitious attempt of a re-foundation of law, beyond the distinction between public and private law, thus bumps into the very uneasy articulation between facts and values. Finally, he seems to reconsider the sociological ground 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. But this appears to be insufficient in order to define precisely a social function : 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 nationalizations, and even the modern notion of public service is only partially grounded on his views. But these limits of Duguit?s project should not suffice to condemn 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 on a relation between people can thus be illustrated in various ways in contemporary works in philosophy, sociology and political economy. First of all, this 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 a result of the dynamics of social interactions on a given market. Consequently, appropriation, far from being the pure expression of free will, appears to be lead by unconscious social imitation. On the one hand, such analysis goes beyond Duguit?s views in so far as it draws more radical conclusions of Durkheim?s sociology : the actual ground of individual appropriation is not social solidarity, but social dynamics of valuation. Social interdependency does not spontaneously appear as harmonious but on the contrary, the failure of financial markets? self-regulation calls for a better involvement of State interventionism. But on the other hand, this theory appears to be not as ambitious as Duguit?s, since it doesn?t 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 raising illegal traffic and the increase of elephant killings in Africa. Such gestures illustrate a concrete involvement of public institutions in the social dynamics of valuation. To fully understand them, one is forced to recognize their symbolical dimension, that is to say their self-attested, performative claim that these parts of animals cannot be recognized any value no more, and consequently, do not constitute goods that can be appropriated. Granted, these public destructions cannot constitute the unique way to fight illegal traffic and poaching, but they exhibit in a very pure way that the conditions of the very existence of markets and properties are not only social, but even public, and that they therefore involve political commitments. An anthropological look on modern social practices thus reveals that the search for alternative conceptions of property should also include institutional dimensions of social life.