The Environmental Function of Civil Property: The Crisis of the Division Between Public Law and Private Law

Abstract

The Chilean Civil Code’s treatment of environmental matters shows how the boundary between public and private law is diluted. First, it will be argued that in its articles, the Civil Code contemplates the environmental function of property, and that the protection of the civil property right also means protecting the right to live in an unpolluted environment, embodied in article 19 N.° 8 of the Political Constitution of the Republic, while recognizing the restrictions of the social function emanating from its article 19 N.° 24. Secondly, it will be shown that the legal foundations incorporated in the core of the Andres Bello’s Code allow us to establish a constitutionalization of Private Law, given that the civil norms that protect the environment are coherent and compatible with the Political Constitution. Finally, it will be shown that the constitutional rules do not shape or distort the understanding of private law on environmental protection, but rather the opposite phenomenon: private law nourishes constitutional norms.