| Special Workshop Title: | Law Scholarship and Law Teaching: Technical or Theoretical? |
| Author: | J. W. Harris, Oxford |
| Paper Title: | Property Theory and Property Law: From Formal Dogmatics to Substantive Rights |
| Abstract: | This essay argues that, notwithstanding differences in their legal dogmatics, civil and common law systems of the modern west have, in substance, a common underlying structure. The argument is illustrated in relation, first, to land and, secondly, in relation to monetary and intangible resources. The underlying structure comprises a spectrum of ownership interests, together with trespassory, property-limitation, expropriation and appropriation rules. Property rights consist either of the rights which are the correlatives of duties imposed by trespassory rules, or of rights to use, control or transmit a resource which is within an owner’s domain. The substance of property domain rights is much the same in all modern western systems. There is also a third sense in which a person’s interest in his holdings may be said to constitute a ‘right’ – that is, if he is supposed to have standing to insist, against the community, that his interest in his holdings should be respected and protected. The functions of all these rights are the maintenance of individual autonomy and the promotion of collective economic benefits. |
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