Introduction

As the chief jurist for the Popular Unity (UP) Government, Eduardo Novoa Monreal (1916-2006) was, without a doubt, one of the most influential legal scholars in Chile during the second half of the twentieth century. The general public primarily remembers him for the unfortunately famous phrase “resquicios legales” (legal loopholes), which the political right coined to oppose the social and economic policies the UP sought to implement. Novoa, however, used this very expression—in an act of impeccable academic rigor—to demonstrate the complete legality of those policies, arguing that they were based on existing laws that had merely fallen into disuse.

The legal community recalls him as a jurist of high standing, a theorist of both criminal law (derecho penal) and Law in general (Matus, 2018, p. 4), who developed a proposal for a critical theory of law (Villalonga, 2008; Valenzuela and Lobos, 2022), even helping to prefigure this critical approach in the Latin American context (Fernandes and Roriz, 2024).

He was an intellectual genuinely committed to the necessity of making both legal education and legal practice sensitive to the country’s social reality. Along these lines, it has been asserted that “Ibero-American universities owe him pathways for the penetration of socio-legal information into legal dogmatics (dogmatic analysis of law) and the critique of the legal system” (Guzmán, 2018, p. 12).

The critical approach with which Novoa addressed legal problems led him to disdain dogmatic -formalist perspectives, which are often presented under a veneer of scientific objectivity that, in his judgment, is merely illusory. Novoa is a severe critic of the way jurists of his time conceived and applied the positive law (derecho vigente), and, consequently, he is fully conscious of the “socially paralyzing effect exerted by the law that is officially formulated, applied, and taught” (Novoa, 1972, p. 203).

This awareness is clearly evident in his analysis of individualism and its deep imbrication within the current positive law. This was undoubtedly one of the major themes encompassing his vast body of work. According to Novoa, this imbrication occurs throughout the entire legal system, in both private law and public law, thereby becoming an obstacle to the legal renovation he sought: one that would place the primacy of the collective interest over the individual interest at the center of the legal system.

For this reason, the concept of individualism plays a crucial role in several of his works, especially in his influential book El Derecho como obstáculo al cambio social (Law as an Obstacle to Social Change) (1975), although his reflections on this topic began to develop in earlier works, particularly in his articles La Renovación del Derecho (The Renewal of Law) (1968), Hacia un nuevo Derecho (Toward a New Law) (1968), Revolución y derecho (Revolution and Law) (1969), and Hacia una nueva conceptualización jurídica (Toward a New Legal Conceptualization) (1972). Novoa’s central thesis is that individualism constitutes an inveterate feature of our legal tradition—a permanent element projected from Roman Law, through its medieval reception, up to the nineteenth-century constitutionalism and codification, both of which were still active in his time.

Attempting to articulate a critical legal analysis that identifies legal individualism as a perennial trait of our legal tradition might, at first glance, appear an overly ambitious undertaking. Along these lines, some recent commentators on Novoa’s work have warned of a certain tendency toward “reductionism” and a “relative lack of nuance in his descriptions,” particularly concerning his defense of the social function of property. This tendency is attributed to the “openly political-partisan character” of his approach (Wilenmann, 2018, p. 220). Is it pertinent to extend this characterization to Novoa’s analysis of legal individualism?

The purpose of this paper is to critically evaluate the concept of legal individualism present in Novoa’s work. Due to the breadth of his scholarship, which spans over four decades, I have limited the analysis to the main works produced from the late 1960s up to the mid-1970s—that is, before, during, and immediately after the UP government (Popular Unity). It is during this period that Novoa was able to identify and develop the idea of legal individualism, reflecting upon the social changes that took place in Chile. These reflections culminated in his best-known work, El Derecho como obstáculo al cambio social (1975), where this idea plays a central role.

The first section situates Novoa’s work within its intellectual context: the thesis of the inadequacy of law in the face of social change, a view shared by several Latin American jurists of the era. The second examines his argument that law cannot be understood in isolation from the political and economic doctrines that organize social life, with individualism and the homo oeconomicus being the dominant conceptions in the West. The third explains how this individualistic conception achieved hegemony in Western legal thought through the confluence of Roman private law, the French Revolution, and the codification movement. The fourth shows how, based on this diagnosis, Novoa advocates for the renewal of legal studies, complementing the doctrinal analysis (dogmática jurídica) with a sociological and critical approach. The final section raises two objections to his proposal: first, that it relies on the self-understanding disseminated by the liberal-individualist tradition itself, and second, that his criticisms are misguided, as they are in fact directed against the modern political anthropology that this tradition subsequently embraced.

1. Novoa’s intellectual context: the inadequacy thesis

Novoa’s critical perspective does not equate Law with politics; rather, it seeks to construct a new legal order dictated by social change: “Law exerts only a limited influence as a shaper of social consciousness, and it is social change that is destined to produce a new Law” (Novoa, 1969, p. 161).

Within the intellectual context in which Novoa worked—in the late sixties and early seventies of the last century—one of the central disputed issues was the role of Law in processes of social change. In the background of this legal debate, of course, lay an economic debate concerning the transition from underdevelopment to development, a discussion that “classic CEPALism” (referring to the Economic Commission for Latin America and the Caribbean) successfully introduced in the 1950s (Devés, 2003, p. 35), and whose emphasis was predominantly economic. During the 1960s, this “classic CEPALism” underwent a shift “in which social factors become decisive” (Devés, 2003, p. 36). It is in this context that Novoa’s attempt to transform legal science (or ciencia jurídica) must be placed.

Novoa, like many Latin American legal scholars of the second half of the twentieth century, distances himself from the European Marxism of his time regarding the idea that Law, as a whole, would either be an epiphenomenon of the relations of production or merely an instrument allowing the bourgeoisie to subjugate the working class (Valenzuela y Lobos, 2022, p. 2). In this respect, Novoa states:

We do not postulate that Law can be a significant agent of social transformation; much less that it can become a revolutionary weapon. But we believe that this disregard for an instrument of social organization—we believe it is no more than that—valuable for implementing a socialist society and for guiding it until the fairly distant stage of a society without State and without Law is reached, is a mistake of Marxism, one that is already beginning to be perceived and will hopefully be corrected. (1972, p. 204)

Novoa’s thesis is much more complex than simply asserting that Law is an instrument for social transformation. Rather, he maintains that social change is the transformative force of Law, but one should not therefore dispense with Law. On the contrary, he argues that it proves to be a key element for channeling these social changes institutionally.

Therefore, for Novoa, it is necessary to conceive of the Law (or Legal System) in such a way that it effectively serves this channeling. In this regard, he notes: “One of the greatest difficulties offered by the legal system prevailing among us is its total lack of adaptability to the changing circumstances of social life” (1972, p. 210).

Novoa’s thesis is, in fact, one shared by several Latin American jurists of the time who perceived the Law to be in crisis. This thesis has been termed the thesis of inadequacy: it maintains that our legal system “was inadequate,” and this inadequacy was interpreted in terms of a “crisis.” If inadequacy produced the crisis, what did this inadequacy consist of?

For them, it was a crisis reflected in the difficulty of the law to respond to the challenges derived from the accelerated growth of the Chilean economy, particularly since its decisive orientation towards industry beginning in the 1950s. (Jiménez, 2024, p. 327)

Considering the shift experienced in Cepalismo (ECLAC thinking) during the 1960s, moving from “classic Cepalismo,” which emphasized economic developmentalism, towards a socially oriented Cepalismo, Novoa’s proposal must be understood as an effort to identify and remove the obstacles within our legal framework that prevented its adaptation to the social changes that were beginning to emerge.

This need to renew the law was, as noted, shared by several Chilean and Latin American jurists of the time. For example, Alfredo Etcheberry, a Christian Democratic jurist, wrote during the UP era (Popular Unity government):

What has been called “legalism” (juridismo) or the “legalistic mentality” presents itself as an obstacle to renewal and progress in all spheres (even theological and religious); legal institutions appear detached from reality and social needs; in short, men of law would generally play a conservative— if not reactionary—role in the transformation of society. (Etcheberry, 1972, p. 106)

Novoa identifies individualism as the main obstacle preventing social change from producing a new body of law.

2. Novoa and individualism in the western legal tradition

Novoa’s thesis on individualism begins with a methodological point: the separation of legal science from politics—a position vigorously defended by Kelsen in his time—is performed only “for strictly scientific delimitation purposes, since the legal rule is closely connected with politics, to the point that, in truth, it is at the service of politics” (Novoa, 2002, p. 118).

With this, Novoa asserts that if one accepts that Law orders social life, one must then accept that the way in which social life is ordered determines the Law. Given that the forms of ordering social life are multiple, they depend on various political doctrines that select among the possible forms of ordering. Hence the necessity that a “description and explanation of Law” cannot dispense with such political (as well as economic) doctrines (Novoa, 2002, p. 118).

According to Novoa, despite the fact that various philosophical-legal theories, ranging from Thomism to Marxism, may agree on “the ultimate goal of legally organized society,” which is the public good (bien público), the specific way in which each society concretizes this goal “has its own recipe about the paths that must lead to it” (2002, p. 120).

Novoa’s thesis is completed by pointing out that from the sixteenth century onwards, “individualistic and capitalist ideas began to gain ground in Europe and to transform the social, economic, [and] legal structure of the Western world” (2002, p. 121). Therefore, for Novoa, individualism:

[H]olds that man possesses certain subjective rights (derechos subjetivos) by himself, which are therefore called natural rights, and that he is born free, with the right to develop in all his aspects and to become the master of the product of his activity. From this it follows that subjective rights are what allow the realization of objective Law (Derecho objetivo); the latter is ultimately founded on them. The State has no other purpose than to protect and sanction the individual rights of each person. (2002, p. 123)

According to Novoa, this “intense affirmation of the individual” reduces Law “to reconciling free wills in conflict, characteristic of conscious subjects who independently exercise their wills in the diverse activities of life; man isolates himself from others and places legal rules as a defensive fence for his individual rights” (2002, p. 124). Elsewhere, Novoa notes:

[F]or political, economic, and social coexistence, the same concepts, the same institutions, and identical formulations of legal principles that governed when individualism reigned supreme, in the middle of the last century, persist almost untouched in the legal field (1972, p. 203)

For Novoa, the economic correlate of this legal individualism is, of course, capitalism. The corresponding political economy to this system, therefore, maintains that “the greater the freedom allowed to economic factors, the greater the identity of interests that will be achieved among the various social classes” (Novoa, 2002, p. 125). At this point, Novoa follows Laski, pointing out that this conception:

“[I]s oriented toward a type of selfish and calculating individual, ideally isolated and supposedly, in the abstract, equal to others and living outside of any social bond: it is the image of man that corresponds to the fiction of the homo oeconomicus.” In short, it “assimilates every man to the merchant and constructs for all men a Law that is adequate only for merchants.” (Novoa, 2002, p. 125)

In an earlier work, written during the Government of the Unidad Popular [Popular Unity], Novoa clarifies the opposition between individualism and socialism:

By the term, we refer not only to the most characteristic and defined socialism, which is the Marxist one, but also to every idea consciously opposed to individualism as a conception intended to explain and guide the structure of a society, and which strives to establish in social life the criterion that the manifestations of public power must be inspired by the demands of the collective good, even when this imposes or implies the sacrifice of individual interests or those of minority groups. (1972, p. 203)

In summary, Novoa’s thesis holds that law is inextricably linked to politics because the organization of social life, defined by political and economic doctrines, determines its content. Since the sixteenth century, individualism and capitalism have supposedly shaped an isolated and competitive subject, the foundation of a legal system centered on the protection of individual rights. This model produces a reductionist view of social life based on the homo oeconomicus.

In contrast, Novoa conceives of socialism, in a broad sense, as an orientation that prioritizes the collective good over individual interests. Nevertheless, Novoa points out that:

“[E]ven in nations organized according to non-socialist systems, the growing complexity of economic structures, the needs of scientific advancement, and also the ever-increasing requirements for the community to act in an organized and solidarity-based manner are imposing with increasing urgency the convenience of some regulation that determines the role corresponding to each citizen in the whole, not only in economic activities but also in tasks of common good such as scientific research, raising the average cultural level, and the protection of public health” (Novoa, 1968a, p. 491).

At this point, the thesis of inadequacy becomes relevant: regardless of whether our legal system is not a socialist legal system (or there is no political or legal consensus for it to become one), our law (derecho) must still advocate for the promotion of social cooperation over individual interest. Novoa justifies this need based on certain objective conditions that he observes: the complexity of economic structures, scientific advancement, and the principle that the political community should act in an organized and solidarity-based manner.

Therefore, in Novoa’s view, a clear tendency was observable in universal and Chilean legislation by the late 1960s: “Within the most recent legal norms, there is a clear trend toward favoring social attitudes that involve a manifestation of solidarity among men and recognizing collective well-being as a value that surpasses that of individuals” (Novoa, 1968a, p. 485).

Nevertheless, he acknowledges that “this decline of legal individualism is not universally manifested with the same vigor” (Novoa, 1968a, p. 485). He points out that this decline of individualism is: a) “definitive in countries affiliated with the socialist political system”; b) “partial and measured in countries deemed to adhere to the so-called Christian social order”; and c) “barely discernible in countries that proclaim the advantages of capitalism and the excellences of an economic organization based on individual private activity” (Novoa, 1968a, p. 485). The Chilean case remains unclear, but it can be inferred from his argument that Chile would be halfway between b) and c).

In summary, Novoa observes a retreat of individualism in law, ceding ground to solidarity and collective well-being, although this phenomenon is not universally homogenous, as it depends on the political and economic doctrines determining each legal system.

A key question then arises: How did this individualistic conception become hegemonic in Western legal thought?

3. Situating legal individualism: revolution and codification

As we saw in the previous section, Novoa maintains that “in the legislative field, the individualism that reigned supreme as a guiding inspiration in legislation since the late eighteenth century is receding” (Novoa, 1968a, p. 485)¹.

For Novoa, the political ideology of the French Revolution is clearly linked to “the triumph of the bourgeoisie over feudal privileges” (Novoa, 2002, p. 20). This interpretation explicitly follows Marx (for example, in The Eighteenth Brumaire), but also aligns with Marxist historiography, which considers it “the classic model of the bourgeois revolution” (Soboul, 1985, p. 9).

Novoa therefore contends that the Code Civil [Civil Code] is clearly dominated by liberal-individualist ideas, consistent with the prevailing bourgeois conception of the time. As noted, “The Napoleonic Code was a bourgeois code written for French husbands and fathers who were wealthy and could afford the fees associated with civil proceedings” (Halpérin, 2023, p. 521).

The foregoing presents a problem for Novoa because, while he seeks to reject liberal-individualist ideas, he cannot fully reject the French Revolution due to the theoretical significance and relevance that this historical process holds for its transformative potential and as a warning for future revolutions.

Rejecting the French Revolution as a revolutionary process solely on the grounds of the implementation of liberal-individualist ideas would have brought him dangerously close to conservative authors like Burke, who strongly opposed the substance and form of that process. Furthermore, because “the negative tradition of the French Revolution” has served, and continues to serve, for revisionist, reactionary, or disillusioned positions to engage in a conceptual retro-projection: that is, to establish “dialogues with subsequent events, such as the Russian Revolution or fascism, or later terms like totalitarian, genocide, or fascism, which have been retroactively projected against the revolutionary event when deemed opportune” (Straehle, 2025, p. 259).

Novoa thus follows the classic Marxist thesis, still in vogue at the time, that the French Revolution was a bourgeois revolution, even though popular elements were present, as classical historiography has highlighted (Lefebvre, 1986): the urban proletariat and the peasantry, whose aspirations were sidelined by the various bourgeois revolutionary leaderships and ultimately buried by the Restoration.

Consequently, Novoa concludes by stating that, as these liberal-individualist ideas crystallized in the fundamental codes, they ultimately lost “that surging force which led to the triumph of the Revolution and became guarantees of a new, quiet, and secure way of life. In other words, they transformed into conservative ideas” (Novoa, 2002, p. 21). In this manner, the Revolution and Codification were ideologically linked.

Here, Novoa follows Ripert, who points out that the Civil Code, “infused with Roman reasoning and the Christian ideal, established a common law that has become the foundation of all civil societies in the Christian West” (Novoa, 2002, p. 21). This is, ultimately, the political and social significance of the codified legislation.

In short, thanks to the codification stemming from the French Revolution, it became possible for “the birth and development of modern capitalism,” where “each man has taken as a life ideal to find happiness in wealth, not so much for the desire to enjoy material goods, but rather for the power that wealth confers within the social system we inhabit” (Novoa, 2002, p. 21).

In light of these considerations regarding the French Revolution and Codification, Novoa characterizes legal individualism (or individualismo jurídico) as a conception according to which the law, far from being a rule of social ordering that is necessary and functional to collective needs, transforms into an evil insofar as it introduces restrictions on the exercise of rights.

In this sense, referring back to Beudant, Novoa emphasizes that “every rule of law constitutes a harm in itself, for its purpose is to regulate the exercise of rights, and regulating that exercise inevitably amounts to limiting it” (Novoa, 2002, p. 127).

However, legal individualism is present not only in the realm of subjective rights:

“On countless occasions, it actively makes its presence felt to protect established interests or preserve established situations, disguising itself as a valid, permanent, and universal legal theory, when in fact it is nothing more than a political doctrine. As long as the legal scholar does not become aware of this, does not recognize the deceit, and does not learn to identify it, we can be certain that legal systems will continue to serve the interests of the past.” (Novoa, 2002, p. 127)

In sum, under legal individualism, objective law remains perpetually subordinated to subjective right, thereby becoming one of the main obstacles to social change. Once the obstacle—its origin, development, and diffusion—has been identified, how does the jurist confront it?

4. A method for rethinking the law

Novoa’s proposal for transforming the Law is remarkable: he does not propose abandoning the legal concepts and categories imbued with legal individualism, but rather proposes to re-signify them.

He proposes this method precisely in 1972, in his work Hacia una nueva conceptualización jurídica (Towards a new legal conceptualization), where he reconsiders the approaches of La renovación del derecho (The renewal of law) (1968). In this previous work, he had suggested a set of principles aimed at transforming the law to overcome legal individualism². However, he later recognizes that it was a mistake to propose these principles as a mechanism for transforming the Law: “we erred in attempting to exhaust the study of the changes that must come about in a law placed at the service of a socialist ideal, using only the deductive method” (Novoa, 1972, p. 205).

As indicated before, Novoa argues that if the ordering of social life determines the law, then the method for transforming the law must also include an inductive approach:

If reality tells us that we live in a very fluid society in terms of its social projects, its customs, and its needs, the logical thing would be to introduce a simple, brief, concise, and easily modifiable legal system in accordance with social demands. (1972, p. 211)

Novoa’s methodological proposal is evident, for example, when he criticizes the intangibility of contracts.

Novoa argues that, despite the general acceptance among jurists of the social function of property, according to which this real right “is subject to limitations as required by the general interests of the State and the common good of other citizens,” this understanding has not extended to the private law of obligations, where the maxim pacta sunt servanda is interpreted as “the affirmation of the absolute intangibility of contracts entered into” (Novoa, 1972, p. 211).

Novoa proposes that personal rights must admit restrictions based on the general interest, in the same way that they are admitted in the case of real rights. Consequently, contractual intangibility cannot be absolute, and contracts, even validly concluded, “could be disregarded for reasons of general interest that have come to occur and put them in contradiction with this interest” (Novoa, 1972, p. 213).

This application of his ideas shows that, for Novoa, the time he lived in was one where individualism was withdrawing, characterized by “the recognition of collective well-being as a value that surpasses that of individuals and a decided support for solidarity among men” (1968b, p. 3). Against this, the duty of the jurist is to remove the obstacles that the law possesses and that are based on the retreating legal individualism.

To this end, Novoa proposes reviewing legal concepts and categories through this method, which he calls inductive-deductive:

[T]he possibility that the new legal conceptualization be examined with simultaneous help from the inductive and deductive methods, both taking advantage of observations of social events and applying the principles deduced from some legal ideas that do not lose their validity in the face of new requirements. (1972, p. 211)

In short, Novoa does not propose abandoning traditional legal categories, but rather redefining them based on a reflection on social reality. Thus, regarding the concept of intangibility of contracts, he notes:

This means establishing that contractual freedom, like the right of ownership, cannot be opposed to general interests and that personal rights and obligations derived from a contractual source are only intangible insofar as they do not oppose those interests (1972, p. 213).

In this way, intangibility is preserved, but it is redefined in light of growing social demands. Of course, it is not strange that Novoa maintains this when he does: since the 1950s, the country had been experiencing a growing demand for social justice on the part of center and left parties, accompanied by a growing social effervescence.

It is precisely the social nature of the demands, rather than the specific legal-political discussion, to which Novoa alludes with his inductive-deductive method. As we saw, social change is the transformative force of law. For this reason, he emphasizes that this change is primarily social: “We live in a society that evolves from the mere coexistence in common of its members, the main characteristic of the individualistic era, to an ever greater application of human solidarity and mutual aid among men” (Novoa, 1968b, p. 11).

However, this change has not been expressed in law in a systematic way. Novoa points out that it has been politics that has taken the first step to adjust the legal system to this new social reality, transforming “the functions of the State, the constitution of public services, and social and popular organization.” Nevertheless, this transformation has been carried out in a legally defective manner “through the imposition of emergency, inorganic, and improvised norms” (Novoa, 1968b, p. 5).

This improvisation in the adjustments to the legal system has produced pernicious effects in some countries, where attempts have been made to dismantle an obsolete legal system without having previously elaborated “a global conception of a new legal order.” This, according to Novoa, has led to:

[A] the most hybrid and sterile of combinations: on an individualistic legal mold, with strong historical roots, which supports its extreme in the distant Roman Private Law, multiple and various patches of other inspirations, required by the demands of the times, have been placed. (Novoa, 1968b, p. 6)

Chile would precisely illustrate this phenomenon. As noted, for Novoa the organization of social life defines the content of law, and since this organization is determined by political and economic doctrines, the Chilean legal system would be halfway between individualistic capitalism and social Christianity. Hence, Novoa concludes that “the new social tendency of the laws has had as its effect a total breakdown of the current legal system” (1968a, p. 485).

Novoa is aware of the risk of caricaturing the tradition of Roman private law, which is why he qualifies his statements: although Roman jurists considered individual interest alongside collective interest, as can be seen in Cicero’s De legibus and the Justinian Codex, where “the truth, today undisputed, that the general interest must prevail over the particular” is recognized (Novoa, 1968a, p. 488), the subsequent reception of these ideas ended up distorting them. The study of individual interest thus became predominant in Western law, while the general interest, the common good, and collective well-being remained foreign to legal reflection, confined to the realm of philosophy and politics.

Novoa’s critique of legal individualism is, then, a critique both of the way in which the Roman legal tradition has been used to shape Western states and societies, including, of course, the Chilean one, and of the way in which law has been taught by jurists within that tradition.

From this arises the need to renew legal studies, complementing formal and dogmatic analysis with a sociological-legal and critical approach to the current legal system.

All this shows that Novoa is, before being a politician, a jurist: one whose intellectual commitment lies precisely in adapting the current law to the ongoing social change.

5. Criticism of Novoa’s proposal: liberal self-understanding and modern political anthropology

The first criticism is to point out that Novoa’s position on legal individualism depends on liberalism’s self-understanding of its own history.

The history of ideas at the end of the 20th century questioned the traditional self-understanding of liberalism as an immemorial intellectual current: one that would trace a continuous line “from Socrates to today” (Gray, 1993, p. 285), demonstrating its anachronism (Geuss, 2001, pp. 69-71) and, therefore, its conceptual fragility (Andrade, 2021, p. 62). This questioning came from both neo-republican perspectives, such as those of Skinner, Pocock, and Pettit, and political realism, from authors such as Geuss.

For authors related to republicanism, liberalism only acquires a clear and coherent doctrinal form in the second half of the 19th century, fundamentally with the work of Mill, while previous thinkers, such as Locke, Montesquieu, Smith, and Constant³, represent rather hybrid or compatible antecedents with republicanism (Pettit 2003). Although Geuss recognizes the core of classical liberalism in Constant, Mill, and Tocqueville, he emphasizes that liberalism must be understood as a historical phenomenon and that, as such, anachronistically conceptualizing it must be avoided (Geuss, 2005, p. 14).

Even authors more sympathetic to liberalism argue that before Mill there is no liberalism stricto sensu, but rather “a liberal syndrome” (Gray, 1993, p. 285).

This liberal self-understanding was reinforced during the Cold War by authors like Popper and Berlin, typically associated with the so-called Cold War liberalism (Andrade 2021, p. 63). Therefore, the republican turn, particularlyitsrecoveryoflibertyasnon-domination, not only contributed to destabilizing this narrative but also forced a redefinition of the structural features of modern liberalism, especially the separation between public and private spheres and the articulation between individual rights and policies aimed at general welfare.

For Novoa, juridical individualism is a deep-rooted feature of our legal tradition, which gains new momentum with its spread to public and private law in Western legal systems thanks to the French Revolution, cognate to the processes of constitutionalism and the codification of private law.

For this reason, his critique of juridical individualism is based on a link between the Roman legal tradition and the liberal tradition, made possible by the French Revolution, constitutionalism, and codification, forming what he calls the individualist liberal regime: “There has been no true novelty in Chilean positive law, and all of it unfolds under the inspiration of the same constitutional precepts destined to mold the individualist liberal regime of the last century” (Novoa, 1968a, p. 488).

However, Novoa’s critique rests on an anachronistic premise: he attributes to liberalism a greater antiquity than it historically corresponds to. Where Novoa identifies liberal individualism, there are only antecedents of that doctrine. The genuinely prevailing philosophical-political tradition during the European and American revolutions was republicanism, whose intellectual matrix was progressively displaced by liberalism throughout the 19th century, a displacement that neorepublican historiography has precisely been responsible for reconstructing and documenting.

Is Novoa’s position deliberately anachronistic? At least two readings are possible. The first attends to the context of codification: this was a heterogeneous process in the West. In Chile, approximately fifty years mediate between the French Code Civil and our Civil Code. In the latter, as a product of the mid-nineteenth century, a recognizable influence of genuinely liberal ideas is indeed appreciated, not only in matters of freedom of commerce, but also in private autonomy and the centrality of individual well-being, which is partly explained by the intellectual relationship of Andrés Bello with the work of Bentham and the Mills (De Ávila, 1982, p. 317; Guzmán, 2006, p. 95; Trujillo, 2019, pp. 73-75). From this perspective, the historical link that Novoa establishes would not entirely lack plausibility.

The second reading is of a theoretical-political nature. Novoa’s Marxist inspiration may have led him to construct a far-reaching interpretive key: a unitary historical plot from which to systematically criticize both past and present jurists, that is, all those who invoke the Western Roman-legal tradition as a shield against demands for social transformation.

As we have seen, Novoa is above all a jurist, and his proposal to rethink law rests on a method oriented to adapting it to social change: in the face of the dogmatic-legalistic reading of legal concepts and categories, he proposes an approach sensitive to historical and social events. Bearing this in mind, the anachronism that runs through his critique seems to respond less to a deliberate political agenda than to the difficulties in adequately characterizing and periodizing the central elements of the liberal-individualist tradition, that is, the precise identification of the political doctrine that, in his opinion, orders social life and determines the physiognomy of Chilean law.

The second criticism maintains that Novoa’s position ends up sharing the same premise as economicist visions of reality, namely, that rational self-interest is the main motive of human action.

This leads us to briefly outline, due to space constraints, some elements of the modern conception of the human being and the political subject: the political anthropology that underlies modernity. The term ‘political anthropology’ here designates the set of biological, cultural, and social beliefs about the human being shared by various modern thinkers. This political anthropology answers the following question: What drives human beings to act in general and, in particular, politically?

Modern political anthropology is built on the basis of the full acceptance of passions/emotions as the legitimate motor of human action. This political anthropology is not a doctrine that was formulated or arose all at once, but rather, it is possible to reconstruct it with the contributions of several authors.

The first phase was the most significant, since it left behind the classical moral philosophy transmitted to the Middle Ages, asserting that reasons alone were not enough to motivate the right action, but that passions should also be taken into account. This new role of passions is clearly present in authors as disparate as Machiavelli and Hobbes.

In a passage from the Discourses on the First Decade of Titus Livy, Machiavelli notes:

Whoever studies present and past affairs easily recognizes that the same desires and passions have existed, and continue to exist, in all cities and peoples; so that, by carefully examining the events of antiquity, any republican government can foresee what is to happen, apply the same remedies used by the ancients, and, if none are in use, devise new ones due to the similarity of the events (Machiavelli, 2000, p. 383)

In Leviathan (Chapter XIII), we find perhaps the most explicit statement, when Hobbes points out that his theory is based on an “inference about human passions” which are the engine of action, and specifically that “the desires and other passions of man are not sins, in themselves, nor are the acts that proceed from the passions until it is known that a law prohibits them” (Hobbes, 1980, p. 103).

In sum, governing human beings requires recognizing them as rational agents moved by passions and emotions that, more or less homogeneously, characterize the generality of individuals and that cannot be completely neutralized or sublimated, an aspiration that, however, encouraged the Aristotelian-Thomistic tradition.

Faced with this claim, this first phase attempted various strategies to mitigate the pernicious effects of the passions, among which the thesis of contraposition stands out: strong passions are opposed by other strong passions, which allows the cultivation of weak and benign passions, a mechanism that Hirschman described with precision in The Passions and the Interests (2014) and that Hobbes puts into practice when, in the passage alluded to, he contrasts the passions that lead to war with those that incline towards peace.

In a second phase, the contributions of the moral philosophers of the 17th century are added to this acceptance of reason and passions as motors of action, who maintained that interest should also be considered among the motives of conduct. The distinction is not trivial: as La Bruyère pointed out, “nothing is easier for passion than to overcome reason; its greatest triumph is to conquer interest” (Elster, 2007, p. 111).

Giving place to passions in the explanation of action, and not treating them as evils that must be purged from human life, as authors of classical antiquity and the tradition that prolonged them maintained, constitutes the core of modern political anthropology.

However, the influence of the Enlightenment, and particularly of Kant’s work, displaced this focus: the philosophical explanation of action was limited to reason as an autonomous source of determination of the will, relegating Humean postulates, in which reason was subordinated to passion.

In a third phase, the language of passions was progressively displaced by the language of interests. The distinction is revealing: human beings are not moved by avarice, but by the legitimate interest of working and earning money. This semantic displacement allowed for the purification of moral vocabulary, until then saturated with desires and passions, insofar as interests came to be conceived as capable of channeling and dominating those (Hirschman, 2014, pp. 54 et seq.).

De este modo, el interés, entendido originalmente por los filósofos morales del siglo XVII como una forma de amor propio orientada al reconocimiento de la propia condición y conveniencia del individuo, esto es, como expresión de su bienestar integral, terminó reduciéndose al interés material y convirtiéndose en sinónimo de afán de ganancia económica.

In this way, interest, originally understood by 17th-century moral philosophers as a form of self-love oriented toward the recognition of the individual’s own condition and convenience, that is, as an expression of their integral well-being, ended up being reduced to material interest and becoming synonymous with the pursuit of economic gain.

For this reason, Elster, in Alchemies of the Mind, sets out to rescue the role of emotions and interests in the explanation of action. Emotions are for him an essential, albeit disruptive, component of practical rationality. His approach is more realistic than enlightened rationalism, as it recognizes the cognitive limits and distortions that affect human action: even as rational agents, we are prone to self-deception through semi-conscious mechanisms of misrepresentation and transmutation of what we feel and believe (Elster, 2002, pp. 414, 496–497).

Added to this is Elster’s characterization of interest as one of the three drivers of action, along with emotions and social norms. For Elster, interest consists of “any motive, common to the members of a given authentic subgroup of society, that is oriented towards improving the situation of that subgroup in some sense, such as pleasure, wealth, fame, status, or power” (Elster, 2002, p. 410).

Rational self-government is not, therefore, a state of affairs definitively achievable, but a permanent struggle between emotional impulses, interests, and critical reflection. Our rationality is situated and limited: the agent can understand what would be rational to do but does not always manage to do it. This irresolvable tension constitutes the philosophical core of modern political anthropology and finds additional support in recent developments in moral philosophy.

Indeed, the sentimentalist thesis, increasingly widespread in contemporary moral philosophy, maintains that values are not independent of those who value them: “Human values depend on human valuation, which is inextricably linked to affect, feeling, and emotion” (D’Arms and Jacobson, 2000a, p. 723). In other words, human beings are beings to whom things matter, and it is precisely that capacity for something to matter to us that makes the existence of values possible. From this perspective, excluding passions and interests from the explanation of action not only impoverishes political anthropology, but also distorts the very nature of the values that guide practical life.

Thus, acting for a reason, for example, being supportive, cooperating, considering the interests of others, cannot be analyzed as an isolated phenomenon, but rather by attending to the emotions and interests that originate and condition it.

Reasons, emotions, and interests do not operate independently, but are intertwined and mutually modulate in the explanation of action. This should be the starting point of any study of human behavior and social change: to examine human beings as they are, not as they should be. This realistic premise is precisely what defines the modern conception of the political subject.

The criticism of Novoa is that, by adopting an excessively simplified conception of the motives of action, he ends up reproducing the same reductionist assumptions of modern economicism that he intends to question. To the fiction of homo oeconomicus, Novoa opposes the fiction of homo solidarius, which likewise overlooks the emotional and normative complexity of human motivation. We are capable, to preserve the image we have of ourselves and the one we want to project to others, of distorting or transmuting our passions, in the sense pointed out by Elster, making them appear more acceptable in our own eyes or in the eyes of others; and with this, we also distort what we consider valuable to do or pursue.

Therefore, the social change that Novoa believed to observe between 1968 and 1972, a growing solidarity and mutual aid, ended in bitter disappointment. For modern political anthropology, there is no “new man” that the legal-political system must recognize or, even more problematically, manufacture: human beings exist as they are, with limited rationality, motivated by reasons, passions, and interests, capable of distorting the motives of their own actions according to the self-image they cultivate and the perception that others have of them.

Thus, we show solidarity to the extent that we conceive of ourselves as solidary and that others also consider it desirable, but we are willing to stop being so when it is no longer convenient for us or when the normative pressure of the environment shifts, and for this, we will always find a motive, usually in the form of a reason, that justifies the change to ourselves and to others.

From this point of view, understanding neo-sentimentalism⁴ is key to politically leading social change processes: it is not enough to appeal solely to values such as solidarity, empathy, or social justice, but it is necessary to cultivate the social conditions in which emotions appropriate to those values can arise and be expressed. Ultimately, values do not subsist independently of those who value them: their practical validity depends on the emotions that sustain them being considered suitable in a given context⁵.

Thus, appropriate emotions must be, in the first place, suitable (fittingness) with respect to the context in which the values are invoked (D’Arms and Jacobson, 2000a, p. 746), such as the commiseration that accompanies solidarity, and, secondly, they must be recognized in that context as legitimate to experience, both individually and socially. To this must be added that, to translate into action, emotions must connect with the interest of the individual or the corresponding social group.

Now, an emotion can be suitable for a value and yet not be socially or individually recognized as legitimate⁶. It follows that it is not possible to infer the suitability of an emotion for a value from its moral correctness: doing so is equivalent to committing the so-called moralistic fallacy (D’Arms and Jacobson, 2000b).

Thus, in the face of a situation of strong social inequality, we can invoke the value of solidarity motivated by the commiseration that this situation awakens and which is socially recognized as suitable, but it may happen that this same situation awakens indifference or contempt in me. In such a case, even if I consider that solidarity is a genuine value and am even willing to make an economic sacrifice to reduce inequality, I will not be able to manifest those real emotions because they are not recognized as legitimate in that context. The dissociation between real emotion, suitable emotion, and willingness to act reveals the complexity that any political appeal to values must confront.

In short, Novoa’s criticism was misdirected: it should have been oriented not towards liberal individualism as a doctrine, but towards the modern political anthropology that sustains it and which constitutes a formidable obstacle to the renewal of Law that he wished.

Conclusions

In conclusion, it should be noted that legal individualism in Novoa operates as a critical diagnosis that is more political than historical: although he correctly identifies that Western law has privileged the protection of individual interests, his reconstruction of liberalism as a unitary and millenary tradition that underlies legal individualism depends on the liberal self-understanding diffused in the 19th and 20th centuries, especially during the Cold War, rather than on a precise historiographical reconstruction.

The real obstacle to the legal change that Novoa seeks is not, therefore, liberal-individualism as a doctrine, but the modern political anthropology that underpins it and which Novoa only manages to glimpse. This anthropology, focused on the triad of reasons, passions, and interests as elements that interrelate in the motivation of human action, reveals a situated and limited rationality, very different from the homo solidarius that Novoa presupposes. By opposing the fiction of homo oeconomicus with the alternative fiction of homo solidarius, Novoa disregards the plasticity of emotions, reasons, and interests that characterizes human beings who act politically, and unknowingly reproduces the same reductionist assumptions of economicism that he intends to question.

On the other hand, the inductive-deductive method proposed by Novoa constitutes a genuinely legal contribution as it seeks to re-signify the traditional categories of law rather than replace them, as was seen in the case of contractual intangibility, adapting the legal system to real social transformations without dismantling the conceptual architecture of Western Law.

Ultimately, Novoa’s legal renewal project faces a structural limit: it places its hopes on a moral transformation of the subject instead of assuming the anthropological continuity that modernity has highlighted. In a context where reasons, passions, and interests can be manipulated and mutually reinforced, solidarity cannot constitute a stable basis for the transformation of law. This forces the critique to be redirected towards the anthropological foundations of modernity, rather than towards liberalism and its individualism.

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Funding: UTA Mayor 2024 Research Project, N°6749-24 “‘La soberanía esencialmente en la nación’. Una propuesta contextualista para la historia constitucional” (Sovereignty Essentially in the Nation: A Contextualist Proposal for Constitutional History), University of Tarapacá, Chile.

Acknowledgments: A preliminary version of this paper was presented at the XV Congress on Law and Social Change, held in Arica on July 10 and 11, 2025. I appreciate the comments received.

Conflicts of interest: The present article does not involve any conflicts of interest.

Author contribution: Marcos Andrade-Moreno: Conceptualization, Writing - review and editing, Writing - original draft preparation, Investigation

Use of artificial intelligence tools: The author has used Claude to review and correct drafting errors in some paragraphs.

Notes

1 Here, Novoa once again advocates for his conception of socialism, since, in his view, the acknowledgment of the regression of individualism in the legal sphere entails “an explicit legislative recognition of social and legal conceptions that place the highest value on the collective interest” (Novoa, 1968a, p. 485).

2 These principles were: the “very precise and exact delimitation of the primacy of the general interest over the particular”, the “determination of the duties that man has, as a member of a legally organized civil society” and an examination of “the practical consequences that the preeminence of the general interest has in social life, to determine which of them, due to their importance and scope, should be included in special legal rules” (Novoa, 1968b, p. 19).

3 This core would be made up of four postulates: a) tolerance: assigning a “high positive value to tolerance as a cardinal virtue of human societies”; b) freedom: attributing special normative importance “to the free consent of its members as the sole source of political authority”; c) individualism: understood in the sense that “a society is good only insofar as its members enjoy well-being”; d) limitation of power: “is characterized by a particular type of anxiety: the fear of unlimited, concentrated, or arbitrary power” (Geuss, 2001b, p. 14).

4 Neosentimentalism asserts that “an important set of evaluative concepts (or terms or properties) is best understood as invoking a normative assessment of the fittingness (or merit or rationality) of some associated emotional response” (D’Arms and Jacobson, 2000a, p. 729).

5 The appropriateness of an emotion is not equivalent to an unrestricted moral duty: “To say that a feeling is appropriate in this sense is to grant it a specific and limited form of endorsement, which is neither a judgment of rightness, prudence, or warrant, nor a full endorsement of the feeling as what one ought to feel” (D’Arms y Jacobson, 2000a, p. 746).

6 Stated more precisely: “It is not necessary to feel a feeling to make the judgment associated with it, and one can reject the judgment even while feeling the feeling” (D’Arms and Jacobson, 2000a, p. 725).