Research Handbooks in Comparative Law series
Edited by Theodore Eisenberg and Giovanni B. Ramello
How different are civil and common law property? Traditional comparative law sees them as quite divergent—the one as an outgrowth of Roman law and the other as retaining a feudal character. On this view, civil law is all about dominion and ownership, and the common law does hardly more than protect the possessory relationship (with the common law perhaps lacking a notion of ownership at all). The traditional view has received a boost from the so-called ‘legal origins’ literature, which purports to find a positive correlation between a common law origin of countries’ legal systems and their positive macro-economic performance (see, e.g., La Porta et. al. 2008). At the same time, an almost diametrically opposed picture of the relation of civil and common law has also held sway, especially in law and economics and other functionalist quarters. To this way of thinking, civil law and common law both provide a similar bundle of rights and duties, with variation around the edges. Functional ownership is present in both systems, furnishing broad control rights and a residual claim, with more or less extensive regulation of uses. The different vocabulary or even the (on this view) minor doctrinal differences between civil and common law property systems are not likely to matter enough to produce the macro effects that are the focus of the legal origins literature.
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