Comparisons of property laws require an understanding of what is living law, governing and structuring social practice and social expectations, and what are instead the intellectual tools that lawyers use to rationalise, structure, and represent property rules in conceptual terms. Many of the differences between the common law and the civil law – even those that are often presented as distinctive of each legal tradition – should be considered as relating mostly to what jurists and lawyers have done to frame property law in intellectual terms. This chapter takes a critical look at how these narratives are construed and upheld. The analysis set out by the author tackles a few problems, namely to what extent common law and civil law systems rely on different ontologies of property law, and how these ontologies have been historicised through different genealogies, and expressed through language. The author claims that a comparative analysis disentangling these various aspects of the subject may help to advance a better understanding of what different property law systems achieve.
Edited by Michele Graziadei and Lionel Smith
Comparative Property Law provides a comprehensive treatment of property law from a comparative and global perspective. The contributors, who are leading experts in their fields, cover both classical and new subjects, including the transfer of property, the public-private divide in property law, water and forest laws, and the property rights of aboriginal peoples. This Handbook maps the structure and the dynamics of property law in the contemporary world and will be an invaluable reference for researchers working in all domains of property law.