Basic Principles of Property Law: A Comparative Legal and Economic Introduction

Basic Principles of Property Law: A Comparative Legal and Economic Introduction

Basic Principles of Property Law: A Comparative Legal and Economic Introduction

Basic Principles of Property Law: A Comparative Legal and Economic Introduction

Synopsis

The first attempt to address comparative property law in a common integrative framework, this study discusses German, Italian, French, American, and British property law as mere variations based upon a few fundamental themes through which these nations developed legal systems to provide responses to common economic problems and to set legal foundations for working markets. Basic Principles of Property Law was produced to offer a common framework for the discussion of the law of property within countries in transition, thus it has its basis, not on just one legal system, but on the institutional commonalties that make western property law a working market institution. It offers a major challenge to conventional thinking that in property law the differences between common law and civil law are so important that "common core" research is impossible.

Excerpt

Students in the United States and Europe are often introduced to property law by the famous story taken from the title of a paper by Professor Hardin, the so-called "tragedy of the commons." This story is meant to demonstrate the necessity of individualistic property rights, although it actually conveys the more limited idea that scarce resources need regulation, rather than unrestricted freedom. Regulation over scarce resources, as the product of the relationship between individual powers and legal restrictions, defines the meaning of property law for the purpose of this book.

The tragedy of the commons is a useful starting point in explaining the institutional restrictions that, when inherently connected to a tangible scarce resource, make up modern property law in the broad meaning that is the necessary starting point for comparative analysis. Of course, different legal systems recognize as property law only varying fractions of these legal restrictions. Nevertheless, if we strive to gather basic principles common to a variety of legal systems, we cannot be restricted by the internal taxonomy of any one of them.

Imagine that on the shores of the Balaton Lake live three communities of fishermen in a rather primitive state of development. Fishing is the only activity, and the fish in the lake currently mate enough to feed all three communities. An economist would say that an equilibrium exists because the three communities live on the income from the capital rather consuming the capital itself. Imagine now that the need for fish of one of the communities suddenly increases because, for example, a doctor has invented medicine that decreases the rate of . . .

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