Tuesday, January 7, 2014

Babie on An Organising Theme for Australian Property Law

BabiePaul Babie (Adelaide) has posted Sovereignty as Governance: An Organising Theme for Australian Property Law (University of New South Wales Law Journal) on SSRN.  Here's the abstract:

Perhaps the best-known and most succinct, but most misrepresented statement of the meaning of property comes from Sir William Blackstone’s Second Book of the Commentaries on the Laws of England:

There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.

Of course, what it gained in succinctness, Blackstone’s statement lost in accuracy, or, at least, in the way it has been used by others; for Blackstone never meant this statement to represent a full account of all that property was. The way in which most others ever-after have portrayed Blackstone’s words is, at best, inaccurate and, at worst, disingenuous; property is nothing like the absolutist picture painted by an uncritical acceptance of Blackstone’s pithy quotation.


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This splendid article joins the growing number of articles that seek to honor the right of owners to make decisions about their property while honoring the right of society to ensure that those decisions meet social standards of conduct. The author searches for an Australian balance while recognizing that the Australian balance will be the application of a universal methodology for envisioning limits on owner sovereignty. My own expression of such a universal theory will appear later this month when Cambridge publishes my book called Property Law and Social Morality. The theory there (a theory of constrained decision making based on social norms) is consistent over a range of points with the analysis in this article. But I also honor the author's use of the Menell/Dwyer paradigm to embody a methodology of reconciliation.

Posted by: Peter M. Gerhart | Jan 8, 2014 11:05:45 AM

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