Now, the right of property, a topic of particular importance in the present case, has unique characteristics in the field of public economic law. For Gaspar Arino, the necessary budget for financial freedom and, therefore, for political freedom is property since only to that extent can the power to order one’s life be exercised in accordance with one’s desires or ideals, which It would be in any case the definition of freedom that we must handle. In the subjective sphere, then, property allows the exercise of individual freedom in all its facets.
On the other hand, in the objective area, property rights and their efficient protection by the legal system create incentives for the efficient and responsible use of resources in the context of their scarcity in the economic system. Appropriate incentives are created by distributing among members of society mutually exclusive rights to use particular resources, rights that can also be freely transferred.
The exclusivity of property rights
In this sense, exclusivity implies that the right of property operates erga omnes; that is, it can be opposed to everyone and excludes every other individual from its scope. This also means that no other property right over the same asset is allowed. We are talking about co-ownership, which is a somewhat different situation in which several exclusive owners can oppose their rights to all the others. It goes without saying that co-ownership is an inefficient legal situation and that the legal norm establishes mechanisms to be able to conclude it.
It must also be taken into account that the creation of exclusive property rights is not sufficient for the efficient use of resources in the economy since property rights (and, in general, property rights) must be transferable, given that efficiency requires a mechanism that can precisely induce the owner to transfer his property in the case in which the use he gives it is not the most efficient.
In this order of ideas, the exclusivity of the property right ensures that it is used responsibly by its owners. Otherwise, the good does not generate said incentive, and its depletion would occur. Public goods, consequently, create distortions to the functioning of the economic system and must be reduced sufficiently to allow public needs. At a given moment, the market will not be able to offer public goods in sufficient numbers, which in turn implies that not enough resources will be allocated to produce them.
In particular, public domain assets are characterized by being outside the market and not being susceptible to being transferred, as they have been assigned to a public use or a public service. For this reason, they precisely generate a set of distortions that can cause complications. The goods above, consequently, are outside of commerce. For this reason, public domain assets are inalienable and imprescriptible, as indicated by Article 73 of the constitutional norm.
Protection of Property Rights
Property is, therefore, untouchable, and the only way someone can be deprived of it is by a legal sentence. This prohibition is fundamentally directed at the State. Property has then been considered a preferred right within the constitutional plexus of personal rights in national and comparative law.
According to what we have just pointed out, the repeated violation of people’s property rights would necessarily mean that said social function of property is distorted and that scarce goods are not allocated to their most efficient uses. When this happens, the entire community is harmed. In this order of ideas, it is evident that property, as a fundamental right, must be protected directly and immediately through appropriate and effective mechanisms, given that, in addition, said right constitutes a mechanism for the protection of individual freedom.
As a result, the consideration that the right to property must give way to other fundamental rights, considered more important or with respect to social or collective goods – thesis handled by a particular sector of comparative doctrine – must be left aside to the assume, as we are doing, that the right to property is, within the legal system, a fundamental right, not only of equal rank with all others but also of unusual importance for the functioning of the political and economic system of any society.