Land reform and Brazilian Judiciary: tensions between liberal property and the social function principle

Abstract

The idea that access to land constitutes a fundamental right is anchored on the model of Social and Democratic Rule of Law, recognized by the Federal Constitution of 1988. The constitutional text institutes property as an individual subjective right, but also as a source of duties for the community. From this duplicity emerges a tension between the values of economic liberalism and those of a social and collective nature. This tension is present in the conformation of the right to property and it is specified in concrete cases examined by Superior Courts. From the analysis of case law we notice a tendency toward a loss of substance of the normative content of the rural property social function principle. The judicial decisions examined generally interpret that the sole consequence of noncompliance with social function is the possibility of expropriation for land reform purposes upon just compensation. Such interpretation strengthens the liberal individualistic dimension of the right to property, in detriment of the social function principle.