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Philosophical Foundations of Property Law

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Oxford
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شابک: ۹۷۸۰۱۹۹۶۷۳۵۸۲

سال چاپ:۲۰۱۳

کد کتاب:328
۳۹۷ صفحه - وزيري (شوميز) - چاپ ۲
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In 1992, in an article tellingly entitled ‘Too Much Property’,1 Lawrence Becker told us that one of the things which property theorists might now avoid recapitulating at any great length was the ‘now-standard conceptual apparatus of property theory: Hohfeld’s analysis of rights, Honoré’s analysis of ownership, and typologies of justificatory arguments’.2 ‘[W]e can reasonably now refrain from publishing more than a swift, clear restatement of it.’ This conceptual apparatus, essentially the idea that property is to be understood as a ‘bundle of rights’, such as the right to possess, the right to use, the right to sell, and so on, appeared to present a stable picture of the nature of property around which a consensus had formed. Individual ‘sticks’ in the bundle might draw differently on the different standard justifications. For example, the right to possess a chattel3 might reflect a rights-based justification, extending the right to bodily security, or more generally, autonomy, into the world of tangible resources. On the other hand, the power to sell might better be justified on utilitarian grounds, for example by the claim that the power to sell allowed goods to move to their highest value user, thus enhancing allocative efficiency. Becker also suggested that future work might ‘dispense with the search for a deep justification of property rights (from metaphysics, moral psychology, natural rights, developmental psychology, sociobiology, or whatever) and focus on the behavioural surface: the observed, persistent, robust behavioural connections between various property arrangements and human well-being, broadly conceived.’4 Whilst Becker did not himself use the analogy, his paper strongly suggested that property scholarship was approaching, if it had not already arrived at, a period of inquiry which in Kuhnian terms one would describe as one of ‘normal science’. In a somewhat different vein in 1993 Alan Brudner, commenting as editor of a special issue on property theory published in the Canadian Journal of Law & Jurisprudence, stated: ‘skepticism about private property as a stable concept is shared by almost all of the . . . contributors. Some of them argue, while others assume, that property is intelligible only as a social construct, as a perfectly malleable category wholly at the service of collective goals.’