Pluralist Property: The Interaction of Legal and Social Norms

49 Pages Posted: 13 Jun 2015 Last revised: 23 Jul 2015

See all articles by E. Richard Gold

E. Richard Gold

McGill University - Faculty of Law

Date Written: June 10, 2015

Abstract

Justice Holmes long ago recognized the conventional nature of property. What he did not explain is how convention and law interact to create the substantive content of property rights: who can do what in respect of a good and when. Contemporary legal theory focuses on the form of property rights – whether they are necessarily rights to exclude or whatever the state says they are – rather than on their substantive contents. In doing so, however, theory fails to address two fundamental features of property. First, property law adapts to new forms of goods, tangible and intangible, over which the state likely had no conception at the time the rule was made. Second, when states create new forms of property, they generally do not actually legislate what one can do with that property, although in practice there are limits. For example, the EU did not define the substantive content of the euro when that currency was introduced despite the complete absence of background law relating to money. Drawing on a combination of property and social norms theory backed up by empirical studies, this article provides a pluralist account of property and explores its consequences for law.

Keywords: Property, social norms, legal norms, pluralism, money, nominalism, formalism

Suggested Citation

Gold, E. Richard, Pluralist Property: The Interaction of Legal and Social Norms (June 10, 2015). Available at SSRN: https://ssrn.com/abstract=2616941 or http://dx.doi.org/10.2139/ssrn.2616941

E. Richard Gold (Contact Author)

McGill University - Faculty of Law ( email )

3644 Peel Street
Montreal H3A 1W9, Quebec
Canada

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