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Abstract

Using a historical and analytical approach, this paper explores the dual nature of the human right to property, which is protected in Article 17 of the Universal Declaration of Human Rights (UDHR). I argue that to approach property as a mere individual and negative right—the dominant view in Western legal practice—leads to obscuring the social dimension of property, which has been repeatedly affirmed in legal, political, and economic theory, as well as in historical practice. The contemporary omission of this social function in legal discourses tends to undermine the fulfillment of core needs of the community through property, which is in tension with individual and exclusionary rights of ownership. I argue property has been a tool of political and economic domination throughout several historical events, such as agricultural land enclosures, colonialism, and industrialisation—property for power—that progressively silenced the social function of property—property for use.

Rather than confirming this trend, human rights law should frame property as a means to achieve positive freedom by acknowledging the dual nature of property and asserting that only property for use should be viewed as a human right. Canadian Scholar John P. Humphrey had suggested this during the drafting process of the UDHR to incorporate the notion of “personal property,” which is limited to ownership of such things that ensure subsistence, self-realization, and agency. This paper argues that the right to property, defined as a social right, can have a broader reach than a limited Western conception of property.