Sjef Van Erp
The number of studies in comparative property law has recently been growing as a result of efforts to harmonize, or unify, certain aspects of property law in areas crucial for international business transactions. Increasing regional and global economic integration has led to a growing awareness that the divergence of legal rules may lead to inefficiency and raise transactions costs. In Europe the four economic freedoms (free movement of goods, persons, services, and capital), to which now should be added as a fifth freedeom the free movement of data, laid down in the Treaty on European Union and the Treaty on the Functioning of the European Union, have a growing influence on property law. Comparative property law, once considered to be fairly static, is turning into an increasingly dynamic field of law. This is to a considerable degree a consequence of European and global economic integration, and the resulting legal integration. The national property laws, whether belonging to the civilian or the common law tradition, will all be affected by this change.
Alfred L. Brophy
This chapter discusses the role of historical analysis in property law. The history of property has been used to offer support for property rights. Their long history makes the distribution of property look normal, indeed natural and something that cannot or should not be challenged. However, historically in the U.S there have been competing visions of property. From the Progressive era onward especially, the history of property has been used to show the unequal distribution of property and to offer an alternative vision that expands the rights of non-owners of property. In the late twentieth and early twenty-first century, the history of opposition to feudalism and protection of the rights of non-owners was used to protect the rights of non-owners. Thus, the history of property has been a tool of judges and legislators to support property rights and it has also been, less frequently, a tool of critique.
This article sets out two key dimensions of an eco-socio-legal perspective for understanding property rights in natural resources: first, an analysis of how relationships between geographical place, law, and society shape the content and application of property rights in natural resources; second, an eco-socio-legal perspective foregrounds an analysis of how those who hold property rights to natural resources and third parties actually understand these rights, and thus how their meaning-making practices contribute to defining these rights. The first dimension of this eco-socio-legal perspective is fleshed out through a critical review of existing academic literature in the main Section 2 of this article. The second dimension is illustrated through a qualitative empirical case study of English farmers’ understanding of their economic rights to water in Section 3 of this article.
This chapter examines the Indian constitutional position relating to the formation of contracts and the substantive elements of government contracting. In particular, it considers the key issues and controversies surrounding government contracts and the contracting power of the government. It first discusses the formation of contracts to which the government is a party, along with the circumstances when the government can enter into a contract that binds it into a contractual obligation. It then describes the manner in which the government arrives at a decision to enter into—or award—a contract with (or to) a specific individual or business. It also comments on the nature and extent of judicial review of government contracting. Finally, it explains how the Indian Supreme Court has struck a balance to protect public interest from unauthorised government contracts, while also providing protection to contracting parties to a certain extent.
This article deals with property laws, based on two premises. Firstly, property law as means to a contemporary comprehension of social and crime control. Secondly, it posits that the focus has shifted from law and society to law in society. It is concerned with the ways in which law and legality are interpreted and invoked in social life and focuses specifically on their role in the commonplace construction of home, tenure, exclusion, and jurisdiction. It analyses the relationship between the meanings of home and the relationship of home with housing tenure. It identifies defense and exclusion as particular aspects of the property relation, and draws on research into gated communities as a particular example of that relation. This article then proceeds to link this notion of exclusion with broader studies into mapping and jurisdiction. It emphasizes the formal and informal mechanisms through which the notions of home and tenure are thought. It draws on the law–geography interface as an example of research, which has the potential to extend the boundaries of our appreciation of property in law.
This chapter gives an overview of the state of the art in legal historical scholarship on the neoscholastic analysis of property, torts, and contracts in the sixteenth and seventeenth centuries. Neoscholastics, especially followers of the so-called ‘School of Salamanca’, have been credited with laying the foundations of a principled, systematic approach to the law of property and obligations. Concrete examples illustrating the wealth of the primary source material on these topics will be drawn mainly from Leonardus Lessius’s tractate De iustitia et iure, first published in Louvain in 1605. He is generally recognized to be one of the most important representatives of neoscholastic legal thought. Standing between the medieval ius commune and the Protestant natural law tradition, neoscholastics such as Lessius played a major role in shaping modern private law doctrines.
This article examines the right of property as one part of the theory of private law. It is concerned with the justice of private property as one among several main institutions of society that distribute the benefits and burdens that arise through social co-operation. It presents the concept of private law, as characterized by a specific and a distinctive conception of rights called juridical rights and also identifies three essential features of the juridical conception of rights. This article further explores how these publicly available principles and values fit together to form a whole that is reasonable. It provides a framework that is presented as latent in the public legal and political culture, which enables us to see the normative import and the coherence of the principles and values of that culture.
Lael K. Weis
This chapter focuses on the unique formulation of section 51(xxxi), the expropriation clause found in the Australian Constitution. In particular, the chapter suggests that there are unresolved tensions between the status of section 51(xxxi) as a legislative power-conferring provision and its status as a constitutional guarantee. These tensions are most evident in the High Court's regulatory expropriations jurisprudence. Despite the High Court's insistence that section 51(xxxi) is best understood as a constitutional guarantee and not a supplementary grant of legislative power, the High Court has tackled this key interpretive question by using the same approach used to determine whether a law falls within a grant of legislative power. The chapter suggests that these tensions ultimately betray a deeper ambivalence about the place of rights in Australian constitutionalism.
Michael A. Heller
This article argues that despite its seeming disintegration, property is more vibrant than ever — it is a field that has focused on understanding the formal and informal institutions by which society channels decision-making for scarce resources. Many exciting recent innovations in property theory have arisen through dialogue between US and Commonwealth scholars and legislatures. The article is organized as follows. The first part explains the focus on analytic property theory, which is posed in distinction to a jurisprudential approach. The second part introduces the familiar division of ownership into a trilogy of ideal types: private, commons, and state. The next three parts use this trilogy to show how defining, integrating, and constructing these ideal types can lead to useful innovation in property theory. In sum, property theory scholarship seems to work cyclically — reasoning from real-world contests over scarce resources, to analytic tools that translate these struggles into useful conceptual terms, to jurisprudential debates regarding the rightness of resulting allocations, to practical politics that implement one property regime or another, and then back to new on-the-ground struggles.
This chapter examines the U.S. Constitution’s textual basis for judicial engagement with basic questions of ownership, along with property as a feature of the Supreme Court’s engagement with political economy. It first considers conventionalism and essentialism in federal constitutional property jurisprudence before turning to a discussion of the laissez-faire constitutional doctrine of the so-called Lochner-era. It then addresses “regulatory takings” claims, constitutional impediments to redistribution, and the role of normative visions of property use in federalism doctrine, as well as the federal government’s power to govern federal lands. Throughout, the chapter focuses on the interaction between legal doctrine and the larger politics of American economic order, with particular attention to the transition from the welfare state of the twentieth century to conclude with an assessment of the jurisprudence of neoliberal political economy.
Stuart P. Green
The property crimes are among the most familiar, and most complex, criminal offenses. This chapter considers what distinguishes them from other crimes, and from each other. One important characteristic is the degree to which they are dependent on, and work in tandem with, the civil law, including the law of contract, tort, real property, and intellectual property. Some offenses discussed are theft and its constituents (e.g. false pretenses and embezzlement), criminal trespass, and criminal damage, and compound and hybrid offenses (i.e. offenses involving setbacks, or threats, to both proprietary/non-proprietary interests), such as burglary and arson. The problems raised by offenses criminalizing the misappropriation or misuse of intangible and semi-tangible property are covered. The chapter concludes by discussing the complex relationship between the property offenses and social justice, focusing on the use of property law defiance as a means to address social inequities, and the proper punishment for property offenders.
International law protects cultural property in armed conflict from damage and destruction and from all forms of misappropriation against belligerents who have always looked to raze or plunder the enemy’s cultural heritage. ‘Cultural property’ may include buildings and other monuments of historic, artistic or architectural significance, as well as artworks, antiquities, manuscripts, books, archaeological sites, and archives. This chapter focuses on the relevant bodies of international law and international humanitarian law designed to protect cultural property during armed conflict, including multilateral treaties such as the Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments (also known as the Roerich Pact) and the Hague Convention of 1954 and its two Protocols. It also examines international human rights law, international cultural heritage law, and international criminal law under the respective rubrics of war crimes and crimes against humanity.