Friday, March 2, 2012

Property Law and Property Institutions

I am teaching a graduate seminar this semester in Property Theory, a course I have taught only a couple of times before. In the past, I have taught it only to law students. This time, I am teaching it to PhD students along with some visiting scholars in  the Workshop and a few fellow professors.

More than ever, I am struck by the parochial insularity of many (but by no means all) law professors who write about property theory based solely on ancient and modern legal texts, almost exclusively from Rome and Western Europe. This is especially true of the formalists (and what we might call neo-formalists) who insist that property has an irreducible, essential core, distinguishing it fundamentally from other kinds of rights-and duty-systems, such as human rights or rights under contract. They invoke and reify Latinisms such as the in rem-in personam distinction and the numerus clausus, as if such concepts, by themselves, have the power to delimit the potential scope of interpersonal relations concerning things. Like Platonists and the medieval scholastics, they have little tolerance for messier, non-legal facts about the world, disregarding the wealth of anthropological and other social scientific research attesting to the existence of a rich variety of property systems their crabbed conceptual systems cannot fathom.

Property theorists needs to get out of their libraries and into the field. At the very least, they should start paying attention to social scientists who are in the field.

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