Is there a fundamental right to dwelling? Study on the relativization of the concept of property in the face of the right to possession, in the context of urban property

• Grant number: 14/15170-1
• Support Opportunities: Scholarships in Brazil - Scientific Initiation
• Start date: September 01, 2014
• End date: August 31, 2015
• Field of knowledge: Applied Social Sciences - Law - Theory of Law
• Principal Investigator: Josué Mastrodi Neto
• Grantee: Ana Carolina Batista
• Host Institution: Faculdade de Direito. Pontifícia Universidade Católica de Campinas (PUC-CAMP). Campinas , SP, Brazil

Abstract

Since the English Magna Carta of 1215, human rights have been historically stated in the liberal sense of protection, adequate to the fulfilment of the dominant social group's (bourgeoisie) interests and to the consolidation of capitalism. This is the historical background of the protection to the right of property: Law gives preference to the protection of abstract property even when it collides against a concrete possession. The very idealistic concept of property does not differ the property of commodity to the property of the means of production, or the urban property to the rural property. Every good, whatever it is, belongs to its respective owner, in an absolute, exclusive and perpetual way, independent to its attribution or destination. By the end of 19th century, property becomes to be understood in accordance with a social function that should be inherent to it, something that became Law in Brazil by the 1988 Constitution only. In this sense, the use of a building for a tenant's housing is a social function that relativizes the formerly absolute property of this same building. This research aims to, through the relative (non-absolute) concept of urban property, understand possession (or the effective use of any good) as the real ground for the fundamental right to property.