Tuesday, January 18, 2011
Peter G. Turner (St. Catharine's College, Cambridge) has posted Degrees of Property. The abstract:
Navigating a way through a complex idea such as property can be tricky. What guides do we have? Jeremy Bentham showed the way by pointing out that property is rights in relation to things, not the things themselves. But the celebrated “dematerialisation” or “dephysicalisation” of property has left property jurisprudence, courts and students feeling disorientated. The first argument of this article is that lawyers in fact navigate their way through property’s complexity guided by a materialist archetype of property, even where the asset in question has no material existence at all. This argument contradicts a prominent vein of mainstream scholarship going back to Bentham’s account of property.
The supporting evidence indicates that lawyers are also guided by a second tool: the perception that property has varying degrees of strength. This forms the basis of a second theoretical argument. Scholars and courts say that property is not “monolithic”, but leave their assertions undeveloped. Using a large and unnoticed body of evidence that lawyers understand property in terms of its varying degrees of strength, this article gives the first developed account of why property is not monolithic.
The result is to put property analysis on a footing which enables us to attempt to explain the whole of the legal concept of property, where Bentham’s advice only disables us from doing so. The article’s findings impact on property jurisprudence, the workings of the courts and on legal education.