Conceptualising Property Law
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Conceptualising Property Law

Integrating Common Law and Civil Law Traditions

Yaëll Emerich

Conceptualising Property Law offers a transsystemic and integrated approach to common law and civil law property. Property law has traditionally been excluded from comparative law analysis, common law and civil law property being deemed irreconcilable. With this book, Ya'll Emerich aims to dispel the myth that comparison between these two systems of property is impossible. By establishing a dialogue between common law and civil law property, it becomes clear that the two legal traditions share common ground in the way that they address legal, cultural, and social issues related to property and wealth.
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Chapter 2: Historical approach to property

Yaëll Emerich

Abstract

Comparative law scholars have long recognised the importance of historical analysis. For René David, such analysis is central to the process of cultural adaptation that every comparatist must experience in order to understand the place and importance of the institutions being considered. For this reason, it has been said that “comparison is beneficial only if it takes into account the evolution of the law”. The essence of this statement is apparent in a transsystemic approach to law. As H. Patrick Glenn stresses in his work Legal Traditions of the World, the analysis of a legal tradition requires an understanding of how the past manifests itself in the present. The transsystemic approach to law emphasises the impossibility of perfect transcultural understanding. The process of understanding history is necessarily a transformative and creative one.

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