Enlightened Liberalism
Enlightened liberalism is a philosophical, political and economic current that emerged and was developed during the century, known as the "Age of Enlightenment" or the Enlightenment. It is one of the main consequences of Enlightenment thought and represents a fundamental break with the ideas of the old regime (absolute monarchy, estate society, mercantile economy).
Its fundamental principles include:
• - Inalienable natural rights: belief in the rights inherent to all humans (life, liberty, property).
• - Social contract: legitimate government arises from an agreement between people to protect these rights.
• - Division of powers: separation of legislative, executive and judicial powers to prevent tyranny (Montesquieu).
• - Rule of Law and Constitutionalism: the government is subject to the law and regulated by a Constitution.
• - Economic liberalism: defends state non-intervention in the economy, private property and free market (Adam Smith).
• - Tolerance: especially religious and thought.
This ideology was the driving force of the American Revolution and the French Revolution, laying the foundations for modern democratic and capitalist systems.
Hugo Grotius (1583-1645) is considered one of the founders of modern international law, he approached property from a perspective of natural law and society. His ideas about natural law and the need for rational laws that regulate relations between states and individuals were fundamental. Although he lived before the full enlightenment, his theories laid the foundation for the idea of a legal order based on reason and not just divine will or force, which would be crucial for liberal thought.
On the origin of property: Although he did not leave a famously concise quote on the origin of property, Grotius argued that goods were originally common. Private property arose through a human agreement or convention, to avoid conflicts and guarantee the peaceful use of resources. This idea is reflected in his main work, "De iure belli ac pacis" (On the law of war and peace).
Importance of the pact: the right of property, once established by agreement, had to be respected by virtue of the principle of compliance with pacts ("pacta sunt servanda"), a fundamental concept in his philosophy of law.
John Locke (1632-1704) is undoubtedly one of the most influential figures in Enlightenment liberalism. His theories on natural rights (life, liberty and property), limited government, consent of the governed and separation of powers were fundamental pillars. His conception of the social contract, where individuals give some of their rights to a government to better protect their natural rights, is fundamental to liberal philosophy.
For Locke, property originates in work: when a person works in nature, he turns part of it into an extension of himself. Therefore, property is not derived from a contract, but from a natural right linked to individual freedom.
Despite defending property as a natural right, Locke also established limitations, such as the need to leave enough and equally good for others and not accumulate property that is damaged before being used.
Samuel Pufendorf (1632-1694), influenced by Grotius, was also an important figure in the theory of natural law and the law of nations. He developed a system of secular natural law, based on reason and human sociability, independently of theology. His works promoted the idea of individual rights and the importance of the social contract for the establishment of legitimate government, key concepts for liberalism. He was also an important natural law theorist, approaching property from a perspective that combined natural law and human consent.
• - The origin of property by convention: Pufendorf, in his work «De iure naturae et gentium» (Of the right of nature and people), argued that, although nature provided common resources, private property arose by agreement or convention between men to avoid confusion and guarantee peace.
• - Property as a social institution: for Pufendorf, property was not simply a relationship between a person and a thing, but a social institution with obligations and responsibilities. Civil society was necessary to guarantee and regulate the right of property.
In short, while Grotius emphasized agreement as the basis of property, Locke linked it intrinsically to individual labor, and Pufendorf saw it as a necessary social institution established by convention for the common good. His ideas had a profound influence on the development of Western political and legal thought on property.
Thinkers such as Montesquieu and Rousseau, despite having different perspectives on society and government, influenced the conception of property within the framework of individual rights and the need for its protection by law.
Montesquieu (1689-1755): In his great work, "The Spirit of the Laws," he analyzed property in relation to different forms of government and its impact on freedom and society.
Property and freedom: Montesquieu considered property an important element for individual freedom, especially in a moderate government. He believed that the security of property was essential to the safety of citizens.
Relationship to type of government: argued that the nature and extent of property law could vary depending on the type of government. For example, in a democracy, property had to be distributed more to avoid excessive inequality that could corrupt the system. In a despotic state, property was insecure and depended on the will of the sovereign.
Importance of civil laws: Montesquieu emphasized the need for clear and stable civil laws to protect property and prevent arbitrariness.
Although he did not leave as concise and memorable quotes about property as Locke, his analysis of how property relates to the structure of government and liberty was highly influential. His work emphasizes the importance of property security within a fair legal framework.
Jean-Jacques Rousseau (1712-1778): in his works such as "Discours sur l'origine et les fondements de l'inégalité parmi les hommes" (discourse on the origin and foundations of inequality between men), he had a more critical vision of the origin of private property and its impact on society.
• - Criticism of private property as a source of inequality:.
• - The quote continues with:.
This famous quote reflects Rousseau's radical criticism of the private appropriation of land, which he considers the origin of social inequality and many of humanity's ills.
• - Property in the social contract: in "The Social Contract", Rousseau addresses property from a different perspective, within the framework of civil society and the general will. Once it has been established through the social contract, individual property becomes a right guaranteed by the community, but always subordinated to the general will and the common good.
• - Subordination to the general will: For Rousseau, individual property is not an absolute right and prior to society, but a right that arises and remains within the framework of civil society and under the supervision of the general will. The community has the right to regulate and even expropriate property for reasons of public utility.
The Napoleonic Code, promulgated in 1804 during the government of Napoleon Bonaparte, a unified and systematized civil law in France. He eliminated feudal regulations and established key principles such as: equality before the law, protection of private property, freedom of contract, and clear and accessible codification.
This code had a great influence on the legislation of many countries and remains the basis of French civil law.
Jean-Étienne-Marie Portalis (1746-1807) and the Napoleonic Code.
The codification of civil law in the 19th century, with the Napoleonic Code as a paradigm, enshrined private property as an absolute right, within the limits established by law. This conception influenced the legislation of many countries.
Portalis was one of the four jurists in charge of drafting the Civil Code Project, which, after several revisions and debates, became the Napoleonic Code. His preliminary speech in the Draft Civil Code illustrates the philosophy that guided his writing, including the conception of property.
• - Property as a sacred and inviolable right (with nuances): the Napoleonic Code, under the influence of the liberal ideas of the time and Roman tradition, enshrined private property as a fundamental right. Article 544 of the code, which became a key article and model for many other codes, defined property as follows: Property is the right to enjoy and have things in the most absolute manner, provided that it is not prohibited by law or regulations. This definition emphasizes the absolute nature of the right of property, allowing the owner to use, enjoy and have the thing without limitations beyond those established by law.
• - Influence of the French Revolution: The Napoleonic Code also reflected the principles of the French Revolution, including the defense of bourgeois property against the feudal privileges and lordship restrictions of the ancien regime. Free, individual property without feudal burdens was sought.
• - Portalis and the role of law: In his preliminary speech, Portalis emphasized the importance of law in delimiting and protecting rights, including property. The clause as long as it is not prohibited by laws or regulations in Article 544 already indicated that the right of property, despite being considered absolute, was unlimited and could be restricted by legislation in the general interest.
• - Legal security and certainty of property rights: one of the main objectives of the Napoleonic Code was to establish a clear and predictable legal system to guarantee legal certainty, especially in the field of property. This was essential for the development of commerce and the consolidation of bourgeois society.
In summary, Jean-Étienne-Marie Portalis, as a key figure in the drafting of the Napoleonic Code, contributed to establishing a conception of the right of property as an absolute and individual right, within a legal framework that seeks clarity and legal certainty. Article 544 of the Code became a concise and powerful expression of this conception, profoundly influencing the subsequent development of property law in many countries. Despite his defense of an "absolute" right, the inclusion of legal limitations already anticipated the later evolution towards a vision with greater consideration of the social function of property.