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The Property Platform in Anglo-American Law and the Primacy of the Property Concept

42 Pages Posted: 16 Mar 2013 Last revised: 7 May 2013

Donald J. Kochan

Chapman University, The Dale E. Fowler School of Law

Date Written: March 15, 2013

Abstract

This Article proposes that the property concept, when reduced to its basic principles, is a foundational element and a useful lens for evaluating and understanding the whole of Anglo-American private law even though the discrete disciplines — property, tort, and contract — have their own separate and distinct existence.

In this Article, a broad property concept is not focused just on things or on sticks related to things but instead is defined as relating to all things owned. These things may include one’s self and all the key elements associated with this broader set of things owned — including the right to exclude, ownership, dominion, authority, and the sic utere maxim — normally segregated to our discussions of property law but that should be considered equally necessary to contract and tort law.

In examining these property concepts, this Article goes further to contend that ownership in the self has a vital place in the property discussion. Every legal system must decide the level of protection or recognition of property in the self before it can make any decision on what rules to create in relation to real property, tort or contract. The rules in all three develop on their own but each can be measured from their consistency or deviation from a starting base of absolute property ownership in the self. Once we understand that the platform for each of these areas of law is based in the property concept, so too can we then have a metric for discussion to evaluate deviations from pure property principles that develop in each doctrine (or separate discipline) thereby allowing us to also isolate the most unique characteristics attributable only to a discrete subject like contract or tort. But understanding that the property concept is at the base of all three legal species — property, contract and tort — is nonetheless the necessary starting point for an understanding of any of them.

Keywords: property, contracts, torts, right to exclude, sic utere, ownership, James Madison, property rights, dominion, Locke, theory of labor, boxing

JEL Classification: K11, K12, K13, P10, P11, B10, B20, H11, N00, Z10

Suggested Citation

Kochan, Donald J., The Property Platform in Anglo-American Law and the Primacy of the Property Concept (March 15, 2013). Georgia State University Law Review, Vol. 29, No. 2, 2013; Chapman University Law Research Paper No. 13-10. Available at SSRN: https://ssrn.com/abstract=2233734

Donald J. Kochan (Contact Author)

Chapman University, The Dale E. Fowler School of Law ( email )

One University Drive
Orange, CA 92866-1099
United States
714-628-2618 (Phone)
714-628-2576 (Fax)

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