Alan Brudner
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780199592807
- eISBN:
- 9780191767944
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199592807.003.0004
- Subject:
- Law, Constitutional and Administrative Law, Legal History
This chapter identifies the conditions for a person’s rightfully coming to own something outside a public legal order, and it observes how these conditions are reflected in the common-law doctrines ...
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This chapter identifies the conditions for a person’s rightfully coming to own something outside a public legal order, and it observes how these conditions are reflected in the common-law doctrines of possession, adverse possession, free alienability, and market overt. It then shows how the embodiment of personality in private property subverts rather than realizes its end-status. This outcome leads to a reconceptualization of the human being as a moral subject whose particular ends are self-authored, whose self-authorship requires material supports, and whose welfare can thus be an object of public concern. With this new foundation is understood a legal paradigm whose doctrines (e.g. proprietary estoppel, quasi-property) remedy the person’s self-loss in private property and perfect its independence. Also understood, however, is a theoretical momentum toward the dissolution of private property in the common welfare, a momentum counteracted by the very principle of individual autonomy the welfarist paradigm seeks to realize. The resultant tension between individualistic and collectivist paradigms constitutes the modern challenge for a theory of the property law’s unity. The chapter responds to this challenge with a legal foundation already implied by the downfall of the old, one that incorporates both paradigms as constituent parts of a whole.Less
This chapter identifies the conditions for a person’s rightfully coming to own something outside a public legal order, and it observes how these conditions are reflected in the common-law doctrines of possession, adverse possession, free alienability, and market overt. It then shows how the embodiment of personality in private property subverts rather than realizes its end-status. This outcome leads to a reconceptualization of the human being as a moral subject whose particular ends are self-authored, whose self-authorship requires material supports, and whose welfare can thus be an object of public concern. With this new foundation is understood a legal paradigm whose doctrines (e.g. proprietary estoppel, quasi-property) remedy the person’s self-loss in private property and perfect its independence. Also understood, however, is a theoretical momentum toward the dissolution of private property in the common welfare, a momentum counteracted by the very principle of individual autonomy the welfarist paradigm seeks to realize. The resultant tension between individualistic and collectivist paradigms constitutes the modern challenge for a theory of the property law’s unity. The chapter responds to this challenge with a legal foundation already implied by the downfall of the old, one that incorporates both paradigms as constituent parts of a whole.
John Baker
- Published in print:
- 2019
- Published Online:
- June 2019
- ISBN:
- 9780198812609
- eISBN:
- 9780191850400
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198812609.003.0022
- Subject:
- Law, Legal History
This chapter considers the history of the law governing movable chattels, which was different from the law of real property and of chattels real (such as leases of land). The basic principles changed ...
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This chapter considers the history of the law governing movable chattels, which was different from the law of real property and of chattels real (such as leases of land). The basic principles changed little over time. The chapter explores the ways in which property in movables could originate, the modes of transfer, the ways in which property could cease, and how far future interests could be created in chattels. The remainder of the chapter deals with the remedies to protect chattels, beginning with detinue and its defects. Actions on the case lay from the fourteenth century for damaging goods. The action on the case called trover and conversion, which rested on a fictitious loss and finding, came from the sixteenth century to be the usual action for misappropriating goods. Though in form an action in tort, it gradually became a proprietary action.Less
This chapter considers the history of the law governing movable chattels, which was different from the law of real property and of chattels real (such as leases of land). The basic principles changed little over time. The chapter explores the ways in which property in movables could originate, the modes of transfer, the ways in which property could cease, and how far future interests could be created in chattels. The remainder of the chapter deals with the remedies to protect chattels, beginning with detinue and its defects. Actions on the case lay from the fourteenth century for damaging goods. The action on the case called trover and conversion, which rested on a fictitious loss and finding, came from the sixteenth century to be the usual action for misappropriating goods. Though in form an action in tort, it gradually became a proprietary action.
