Page 129 - Supplemento 2-2016 (ENG)

Tackling Environmental Crime throUgh standardized Methodologies

the pre-mentioned authors sustained, the Constitution would have repeated
twice that private property belongs to both the public and private, which,
obviously, would make no sense.

But it is in the second paragraph of article 42 of the Constitution where
we can find the strongest statement that “recomposes” the bourgeois schism
between “territory” and “sovereignty”. Here we can read that “Private property
is recognized and guaranteed by the law, which determines how it is to be pur-
chased, enjoyed and what its limits are, with the aim of ensuring its social fun-
ction and making it accessible to everyone”. If we say that it is the “law”, that
is, a manifestation of the will of the people, that “cedes” private ownership of
the territory to a single individual, placing the insurmountable limit of the
“social function” and “accessibility” for all to the benefits of the property
“ceded” in ownership, the subordinate position of private property is evident.
This subordination of private ownership derives from collective ownership and
is, furthermore, subject to very specific limits in place for the general good, and
it is equally clear that the “originating” and “sovereign” status belong to “col-
lective ownership” and not to “private ownership”.

Here it is shown that the Constitution, after having ensured individuals
had the inviolable right to personal ownership of property that expresses use-
fulness in fulfilling strict personal or family needs (clothes, the first house, etc),
ruled that owners of property in excess of their strict personal or family needs
must fulfill a social function, that is, they had to make this surplus accessible for
the enjoyment of all.

And if this “social function” fails, if, to enhance its profits, a company
dismisses its workers, closes the company, relocates its productive organization,
it must logically be affirmed, in accordance with the Constitution, that the con-
stitutional “recognition and guarantee” of the law under discussion also fails,
in other words, “legal protection” of the rights of private ownership fails, with
the inevitable returning of the property to the collective ownership of the
People.

Furthermore, if legal protection of ownership fails, the right to expropria-
tion compensation also fails since, once the law has failed, obviously there is
nothing to indemnify.

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