General transformations of Private Law since the Napoleon Code

first and sixth lectures

Abstract

This article presents the translation of two central chapters of Léon Duguit’s classic work The General Transformations of Private Law since the Napoleonic Code, which is a transcription of a lecture series delivered by the author at the Faculty of Law of Buenos Aires in 1911. In the first lecture, “Subjective Right and Social Function,” Duguit criticizes the metaphysical and individualistic character of the legal system derived from the 1789 Declaration of the Rights of Man and the Napoleonic Code, arguing that such categories no longer corresponded to the social reality of the early twentieth century. As a substitute for the concept of subjective right, he proposes the notion of “social function,” inspired by positivism and sociological realism. In the final lecture, he applies this conception to property, which ceases to be understood as an instrument of protection of the owner’s interests and is instead affirmed as a social function oriented toward the satisfaction of collective needs. In doing so, Duguit outlines a new legal paradigm, realist and collectivist in nature, which gained prominence during the transition from the nineteenth to the twentieth century.