Authors: Rodrigo Xavier Pontes de Oliveira & Olivia Brandão Melo Campelo Resume: This study investigates the functionalization of p...
Authors: Rodrigo Xavier Pontes de Oliveira & Olivia Brandão Melo Campelo
Resume: This study investigates the functionalization of possession in Brazilian civil law, demonstrating how the concept of possession evolved from a static legal notion to a dynamic instrument for achieving constitutional goals. Drawing on classic and modern legal theories, the article highlights how possession, through its social and economic function, gains autonomy from property. It also presents the practical and legal implications of this transformation, including possessory protections, rights to improvements, and acquisitive prescription. The research offers a doctrinal foundation that aligns with current demands for social justice and productive land use.
The Functionalization of Possession: A Critical Review of the Social Role of Possession in Brazilian Law
The article The Functionalization of Ownership offers a comprehensive analysis of the evolution of possession in Brazilian civil law, emphasizing its emancipation from the traditional concept of ownership and its emerging role as an instrument for achieving social and economic objectives. Through a historical-evolutionary approach and a literature review, authors Rodrigo Xavier Pontes de Oliveira and Olivia Brandão Melo Campelo demonstrate how possession, once seen as a mere legal fact grounded in individual interest, is now understood as a dynamic phenomenon tied to collective well-being.
The study revisits foundational theories that support this conceptual shift. Saleilles’s theory of economic appropriation distinguishes possession from mere detention based on the possessor’s economic autonomy. Perozzi contributes a social perspective, suggesting that social acceptance legitimizes possession, while Gil develops a functional theory asserting that possession only acquires legal relevance when it fulfills a productive or socially beneficial role. These theories converge on the understanding that possession must serve broader societal interests—such as housing, labor, and economic development —to be legally protected.
In this light, possession assumes a leading role in legal discourse, challenging the once-absolute nature of property. Property that lacks active, productive use becomes a static legal abstraction, whereas functional possession aligns with the Brazilian Constitution’s core principles of human dignity, social justice, and poverty reduction.
The article also delves into the practical implications of this redefined legal concept. It examines the legal mechanisms available for possessory protection—such as actions for maintenance, reintegration, and prohibitory interdicts—and the rights arising from good faith possession, including the right to retain improvements, receive fruits, and acquire ownership through adverse possession (usucapion). Brazilian legislation, particularly Articles 1.210 and 1.228 of the Civil Code, reflects this modern approach by granting legal recognition to possession that serves a socially and economically relevant function.
In conclusion, the authors argue that functionalized possession emerges as a legitimate legal tool to promote the productive and socially responsible use of land, standing in contrast to idle or speculative property. This functionalist interpretation repositions possession as a central concept in civil law, fostering legal interpretations aligned with contemporary social realities and the foundational goals of a democratic legal order.
Why This Research Matters: Agribusiness, Possession, and Social Function in Brazil
The motivation behind publishing The Functionalization of Ownership lies in the need to foster a deeper legal understanding of how possession, rather than mere property title, serves as a fundamental tool for achieving social justice and economic productivity—particularly in the Brazilian context. Brazil’s vast rural areas, combined with a strong agrarian economy, make it imperative to rethink traditional notions and emphasize the legal protection of socially productive possession.
According to data from EMBRAPA (Brazilian Agricultural Research Corporation), agriculture and livestock together accounted for over 24.8% of Brazil’s GDP in 20221, when including the agribusiness production chain. The sector is not only vital for the country’s economy but also plays a key role in food security, employment, and sustainable land use. Additionally, APROSOJA (Brazilian Association of Soy Producers) reports that Brazil produced over 150 million tons of soybeans in 20232, positioning the country as the world’s largest exporter and a global leader in agricultural production.
These numbers are not just economic indicators—they represent the materialization of the social function of possession. Rural producers, many of whom do not yet hold formal land titles, are directly responsible for turning idle or unproductive land into socially beneficial assets. They provide food, generate jobs, and support local economies. In such contexts, possession with a productive and social purpose must be recognized and protected by the legal system.
By exploring the evolution of possession in Brazilian law, this article reinforces the notion that possession aligned with agricultural use fulfills constitutional principles such as the right to work, the dignity of the human person, and the social function of property. This is especially relevant in a country where land disputes, agrarian reform, and informal land tenure are still pressing legal and social challenges.
Therefore, the publication of this research contributes to the ongoing legal debate on property rights and agrarian justice. It provides a theoretical and practical framework for courts, scholars, and policymakers to prioritize productive, socially responsible possession over mere formal ownership—thereby promoting a more equitable and sustainable legal order in Brazil.
Biography
Rodrigo Xavier Pontes de Oliveira is a lawyer registered with the Brazilian Bar Association – Piauà Section (OAB/PI) under number 11.086, with prominent practice in civil, registral, agrarian, and environmental law. With solid experience in land law, he represents individuals, companies, and institutions in strategic proceedings related to land regularization, possessory disputes, and the defense of real rights, particularly in the context of Brazilian agribusiness.
He is currently a Master’s candidate in Law at the Federal University of Piauà (UFPI), where he conducts research focused on the functionalization of possession, possessory protection mechanisms, and the realization of the social function of property.
His recent academic contribution includes the article The Functionalization of Ownership, published internationally by the Global Journal of Human-Social Science: Political Science, in which he analyzes the legal autonomy of possession in relation to ownership from a functional and constitutional perspective.
Rodrigo is also an advocate for initiatives promoting sustainable legal development in rural areas, fostering academic debate, drafting technical opinions, and engaging in advocacy with administrative and judicial bodies. He currently serves as a sectional counselor of the OAB Piauà and seeks to bridge legal practice with theoretical reflection, contributing to a legal practice rooted in constitutional values and social transformation.
Contact: [email protected]
OlÃvia Brandão Melo Campelo is a lawyer and Associate Professor at the Faculty of Law of the Federal University of Piauà (UFPI), where she teaches in both undergraduate and graduate programs. She holds a Ph.D. and Master’s degree in Philosophy of Law and the State from the Pontifical Catholic University of São Paulo (PUC-SP), and a specialization in Constitutional Law from the same institution.
At UFPI, she has held key academic leadership roles, including coordinating the Law Program (2018–2020) and serving as Dean of the Faculty of Law (2020–2023). She currently coordinates the Legal Practice Center (NPJ) and is a permanent faculty member of the Graduate Program in Law. Since 2013, she has also taught at the Superior School of the Magistracy of the State of Piauà (ESMEPI).
Her academic work addresses themes such as theories of justice, ethics, human rights, and the social function of property. Among her notable publications are the books Justice: Prudence (2010) and The Idea of Justice in the Contemporary Moral Crisis (2016). More recently, she co-authored the article The Functionalization of Ownership, published in the Global Journal of Human-Social Science: Political Science.
OlÃvia also coordinates the extension project “Dialogues of Dignity” and participates in research groups such as the Republic Nucleus and the Justice Research Nucleus (NUPEJ). Her work bridges teaching, research, and legal practice, with a focus on promoting social justice and upholding human dignity.
Contact: [email protected]
1https://www.embrapa.br/busca-de-noticias/-/noticia/81665485/artigo---a-evolucao-da-agricultura-do-brasil?utm_source=chatgpt.com
2https://www.noticiasagricolas.com.br/noticias/soja/369983-quebra-recorde-aprosoja-brasil-reco-menda-cautela-e-prudencia-aos-produtores.html?utm_source=chatgpt.com
Published by Global Journals
Journal: Global Journal of Human-Social Science: Political Science, Vol. 24, Issue 6, 2024
https://globaljournals.org/GJHSS_Volume24/2-The-Functionalization.pdf
