Edited by Enrico Colombatto
Chapter 8: Property Rights in Common and Civil Law
Norman Barry Introduction Although in the modern world the problems of the economics of property are the same whatever the legal system in which they occur, and indeed there has been some convergence across different orders in the methods for their resolution, it is still important to understand that there are two great rival legal systems for their resolution – the common law model and that of civil law. One initial, and simple, distinction should be made. In common law countries a distinction is normally made between civil and criminal law: the former referring to tort, contract, trusts, property and so on, the latter meaning robbery, murder, rape and so on. It is true that actions under the former are brought by private individuals against other private individuals and in the latter it is the state that proceeds against wrongful behaviour under public law. Wrongful action held to be damaging to society at large as well as to private persons can be criminal. And it is also the case that common law systems typically have a body of public law which is not concerned with crime but administrative matters and proceedings are initiated by public bodies. But while, of course, civil law does make a similar distinction between private and public law, it is the very important differences between the procedures used by the two legal regimes over common problems of tort, contract and property with which I shall be concerned. By civil law (see Mattei 2000, ch. 1) here I...
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